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A   TREATISE 


yaliiity  of  Terlal  Aireemeiits, 


AS  A^rXOTED  BT  THE  LEOISLATITE  ENAOTSIENTS 


m  ENGLAND  AND  THE  UNITED  STATES, 


COUUONLT    CALLED 


THE   STATUTE   OF  FRAUDS; 


INCLCTDINO,  ALSO,  THE  EFFECT  OF  PARTIAL  AND  COMPLETE  PERFORMANCE,  AND 

THE  SUFFICIENCY  OF  THE  WRITING,  IN  CASES  WHERE  VERBAL 

AGREEMENTS  ARE  NOT  VALID  ; 

TOGETHER  WITH  OTHER   KINDRED  MATTERS;  TO  WHICH  ARE   PREFIXED  TRANS- 
CRIPTS OF  THE  VARIOUS  STATUTES  ON  THE  SUBJECT,  NOW   IN 
FORCE  IN   BOTH  COUNTRIES. 


BY  MONTGOMERY  H.  THROOP. 


rN"  x-wo  voLXJ]ytKS. 

YOL.    I. 


ALBANY,  N.  Y. 

JOHN  D.  PARSONS,  Jr.,  PUBLISHER 

1870. 


2^n^M 


r 


Entered,  according  to  act  of  Congress,  in  the  year  Eighteen  Hundred  and  Seventy,  by 

MONTGOMERY»H.    THROOP, 

in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


WHED,  PARSONS  AND  COMPANT, 

PllINTERS  AND  STEREOTTPERS, 

ALBANY,  NEW  YORK. 


PKEFACE. 


The  uncertainty  and  confusion,  which,  after  the  lapse  of  nearly 
two  centuries,  still  obscure  most  questions  pertaining  to  the  appli- 
cation of  the  statute  of  frauds  to  executory  agreements,  have  long 
been  a  reproach  to  our  system  of  jurisprudence,  a  stumbling  block 
to  the  student,  and  a  source  of  painful  embarrassment  to  all  per- 
sons charged  with  the  administration  of  justice.  In  the  following 
pages  I  have  endeavored  to  reduce  the  discordant  mass  of  doctrine 
and  authority  upon  this  branch  of  the  law,  to  an  orderly  and  har- 
monious system.  The  difficulties  attending  this  undertaking  are 
well  known  to  all  who  have  studied  the  subject ;  and  although  I 
cannot  expect  complete  success,  I  hope  for  the  good  will  of  the 
profession  towards  my  effort  to  accomplish  an  object  so  desirable, 
and  its  kindly  indulgence  wherever  I  may  have  failed.  And  I  cher- 
ish with  considerable  confidence  the  belief,  that  this  work,  regarded 
merely  as  a  collation  of  cases  and  principles,  many  of  which  are 
imperfectly  understood,  and  inaccessible  without  much  toil,  will 
tend  materially  to  lighten  the  labors  of  my  professional  brethren 
in  similar  investigations,  and  to  smooth  the  path  of  the  student ; 
even  if  the  methods  which  I  have  freely,  (perhaps  sometimes  pre- 
sumptuously,) suggested,  of  reconciling  cases  supposed  to  be 
conflicting,  and  of  terminating  the  conflict  of  authority  when  they 
could  not  be  reconciled,  shall  fail  to  command  general  approbation. 

The  nature  of  my  task  has  often  required  more  elaborate  dis- 
''ussions  of  principles,  more  minute  examinations  of  the  peculiar 
features  of  the  adjudged  cases,  and  more  extended  comments  upon 
them,  than  would  be  necessary  or  proper,  in  writing  upon  sub- 
jects where  the  governing  rules  are  more  settled,  and  the  authorities 
more  harmonious.     For  this  reason,  and  particularly  in  conse- 


IV  PREFACE. 

quence  of  the  manner  in  which  I  have  cited  leading  and  represent- 
ative cases,  I  have  found  it  impossible  to  complete  this  treatise  in 
one  volume,  as  I  had  originally  proposed.  But,  unless  I  misappre- 
hend the  preferences  of  the  profession,  few  will  complain  of  an 
increase  of  bulk,  caused  by  accurate  condensations  of  judiciously 
selected  authorities.  The  number  of  the  volumes  of  the  reports, 
to  which  an  American  lawyer  is  now  referred  by  the  digests,  is  so 
great,  that  a  personal  examination  of  all  the  adjudications,  upon 
any  obscure  and  controverted  point  of  law,  can  rarely  be  made,  ex- 
cept in  a  public  library ;  and  access  to  such  an  institution  can  be 
obtained  by  many  of  the  profession  only  at  intervals,  while  it  is 
attended  with  great  delays  and  inconveniences,  even  to  those  who 
can  command  it  at  pleasure.  The  plan,  which  has  been  adopted 
by  some  of  the  most  popular  legal  authors,  of  giving  abstracts, 
more  or  less  extended,  of  the  principal  cases  cited,  although  but 
a  partial  remedy  for  this  evil,  is  the  only  one  of  which  it  admits. 
And  I  have  therefore  used  such  abstracts  freely,  in  order  to  eluci- 
date the  practical  operation  of  settled  principles ;  to  point  out  the 
distinctions  in  their  application;  to  show  the  arguments  and 
authorities  upon  each  side  of  unsettled  questions ;  to  fortify  my 
own  conclusions ;  and  generally  to  illustrate  the  current  discus- 
sion. No  pains  have  been  spared  to  overcome  the  difficulty, 
inseparable  from  the  necessary  condensation,  of  making  them 
faithful  exponents  of  the  reported  cases.  And  although  nothing 
can  entirely  supply  the  place  of  the  reports  themselves,  it  is  be- 
lieved that  these  abstracts  will  greatly  assist  the  ready  understanding 
of  the  text,  and  answer  many  useful  purposes,  not  only  in  the 
"  occasions  sudden  "  of  professional  practice,  but  also  in  the  delib- 
erate preparation  of  causes  for  trial  or  argument. 

In  condensing  the  English  decisions,  I  have  consulted  all  the 
different  reports  of  the  same  case,  (frequently  five  or  six  in  num- 
ber,) selecting  in  each  instance  the  most  satisfactory  version,  and 
sometimes  gathering  the  points  of  the  case  from  more  than  one 
report.    The  book  from  which  the  condensation  was  made,  is 


PREFACE.  V 

always  mentioned  in  immediate  connection  with  the  title  of  the 
case ;  and  when  several  books  were  used  for  the  purpose,  all  are 
similarly  cited.  The  parallel  reports  are  referred  to  in  the  foot 
notes ;  or,  when  the  principal  citation  is  in  a  foot  note,  they  are 
inserted  in  brackets. 

There  is  a  very  close  connection,  in  many  instances,  between 
questions  relating  to  the  sufficiency  of  certain  agreements  under 
the  statute  of  frauds,  and  questions  affecting  their  validity  at  com- 
mon law,  or  the  right  to  enforce  them  in  equity.  This  connection 
has  frequently  led  to  confusion  ;  but  even  where  the  dividing  line 
has  been  preserved,  or  after  it  has  been  pointed  out,  a  rigid  restric- 
tion of  the  discussion  to  the  questions  arising  under  the  siatute, 
would  often  leave  the  examination  of  the  subject  incomplete,  and 
its  result  unsatisfiictory.  For  this  reason  many  common  law  and 
equitable  doctrines,  pertaining  to  the  general  law  of  contracts, 
have  been  incidentally  considered  in  the  course  of  these  pages, 
sometimes  at  considerable  length ;  the  discussion  having  been 
thrown  into  a  foot  note,  whenever  it  threatened  to  encroach  too 
much  upon  the  space  and  attention,  to  which  the  principal  subject 
was  justly  entitled  to  lay  claim. 

M.  H.  T 

N  EW  YOEK,  Jidy,  1870. 


TABLE   OF   CONTENTS. 


Statutes  relating  to  the  Subject  of  this  "Woek, 31 


Introductory  Chapter. 

General  survey  of  tlie  statute  of  frauds,  especially  those  parts  of  it  which 
relate  to  executory  contracts, 67 

Akticle  I.  Object,  origin,  history  and  effect  of  the  statute;  different 
opinions  which  have  prevailed  relative  to  the  spirit  in  which  it  should 
be  construed ;  effect  of  such  opinions  \ipon  the  rules  determining  the 
application  of  the  fourth  and  seventeenth  sections, 67 

Abticle  II.  The  statute  superadds  the  necessity  of  a  writing,  to  the  com- 
mon law  requirement  that  every  contract  must  be  founded  upon  a 
suflacient  consideration, 79 


PART  FIEST. 

Op  special  promises  op  executors  and  administrators  to  answer 

DAMAGES  out  OP  THEIR  OWN  ESTATES, 85 


Chapter  J^'irst. 

Consideration  of  the  first  clause  of  the  fourth  section  of  the  statute, 87 

Article  I.  Points  of  similarity  and  dissimilarity  between  cases  arising 
under  the  first  and  second  clauses  respectively  ;  whether  this  clause 
applies  to  promises  made  before  the  grant  of  letters 87 

Article  II.  When  a  general  promise  by  an  executor  or  administrator, 
to  pay  a  debt  of  the  deceased,  is  without  the  statute,  because  u  is  not 
to  be  fulfilled  "  out  of  his  own  estate," 98 

Article  III.  When  tliis  clause  of  the  statute  does  not  apply,  because  the 
subject  matter  or  the  form  of  the  promise  docs  not  answer  the  stat- 
utory description  of  the  liabilities  embraced  within  it, Ill 


CONTENTS, 


PAET  SECOND. 

Of  special  promises  to  answer  for  the  debt,  default,  or  miscab- 

KIAGES  of  another  PERSON, 129 


Chapter  Second. 

Observations  introductory  to  the  consideration  of  the  second  clause  of 
the  fourth  section  of  the  statute, 131 

Article  I.  Explanation  of  the  terms  used  in  treating  this  subject, 131 

Article  II.  How  far  the  consideration  of  a  verbal  promise  affects  its 
validity,    135 

Article  III.  General  classification  of  cases,  apparently  or  actually  within 
the  terms  of  this  clause  of  the  statute,  where  verbal  promises  are 
nevertheless  valid, 148 

Article  IV.  Rules  by  which  to  determine  the  validity  of  verbal  prom- 
ises under  this  clause  of  the  statute, 153 


FIRST  GENERAL  DIVISION. 

Cases  which  are  not  governed  by  this  clause  of  the  statute  of  frauds, 
although  they  fall  within  its  terms, 158 


Chapter  Third. 

Cases  governed  by  the  law  merchant,  or  the  provisions  of  some  other 
statute, 159 

Rule  First. 
Contracts,  the  construction,  validity,  and  evidence  of  which  depend  upon 
so  much  of  the  law  merchant,  as  the  common  law  recognizes,  or  the 
provisions  of  some  other  statute,  are  exceptions  to  the  operation  of 
this  clause  of  the  statute  of  frauds, 159 

Akticle  I.  Contracts  governed  by  the  law  merchant, 159 

Article  II.  Contracts  governed  by  the  provisions  of  some  other  statute,  IGl 


CO::  TEXTS. 


SECOND   GENERAL   DIVISION. 

Cases  which  are  not  witliin  tliis  clause  of  the  statute,  because  the  terms 
of  tlie  statutory  description  of  the  promises  to  which  it  applies,  are 
only  partially  satisfied, 164 


Chaptek  Fourth. 

Cases  depending  upon  the  words,  "  any  special  promise  to  answer," 160 

Rule  Second. 

The  statute  does  not  apply  to  implied  promises ;  or  to  liabilities  for  deceit- 
ful representations,  whereby  the  third  person  gained  credit ;  or  to 
l)romises  to  do  some  act  for  the  security  of  a  creditor  of  a  third  per- 
son, other  than  the  absolute  or  contingent  assumption  of  the  debt  by 
the  promisor, 166 

Article  I.  Where  the  promise  was  not  "  special," 166 

Article  II.  Where  a  liability  for  a  third  person's  debt  or  default  arises 
out  of  a  deceitful  representation,  and  not  out  of  a  "  promise," 171 

Article  III.  Where  a  promise  has  been  made,  to  do  some  act,  tending  to 
the  discharge  of  a  liability  of  a  third  person  to  the  promisee,  but  not 
directly  "  to  answer  for  "  the  same, 183 


Chapter  Fifth. 

General  observations  upon  the  cases  depending  upon  the  words  "  debt, 
default,  or  miscarriages," 191 

Article  I.  Meaning  and  effect  of  these  words,  as  used  in  this  clause  of 
the  statute, 191 

Article  II.  The  statute  does  not  api)ly,  unless  the  promisor  and  the 
third  person  became  concurrently  liable  for  the  same  debt,  default, 
or  miscarriage, 195 


Chapter  Sixth. 

Cases  which  are  not.  within  the  statute,  because  the  third  person  had 
incurred  no  liability  corresponding  with  that  of  the  promisor,  at  the 
time  when  tlic  promise  took  effect, 209 


6  CONTENTS, 

link  Third. 
Where  there  was  no  antecedent  liability  of  the  third  person,  and  the 
promise  was  founded  ui)on  a  consideration  moving  to  him,  it  is  with- 
out tlie  statute,  if  the  third  person  did  not  become  liable  to  the  prom- 
isee, together  with  the  promisor;  and  vice  versa,  if  he  did  so  become 
liable,  it  is  within  the  statute, 209 

Article  I.  Origin  of  the  rule  ;  English  cases  from  which  it  is  derived,. . .  211  "'' 

Article  II.  "Where  the  consideration  consisted  of  money,  property  or 
services,  furnished  to  the  third  person  at  his  request,  but  he  made  no 
express  promise  to  pay  for  them,  the  test  of  the  promisor's  liability 
is  whether  any  credit  was  given  to  the  third  person, 216 

Article  III.  English  cases  upon  the  question  of  credit  to  the  third 

person, 219 

Article  IV.  American  cases,  establishing  and  illustrating  the  general 

rule,  and  upon  the  question  of  credit  to  the  third  person, 228 

Article  V.  How  far  the  question,  whether  the  promise  was  original  or 

collateral,  belongs  to  the  jury, 241 

Article  VI.  Materiality  of  entries  in  the  promisee's  books,  and  of  other 

acts  to  which  the  promisor  was  not  a  party, 248 


Chaptek  Seventh. 

The  same  subject  continued.  Application  of  the  third  rule  to  cases,  where 
the  promise  in  terms  contemplated  a  resort  by  the  promisee  to  the 
third  person, 254 

Article  I.  Where  the  promisor's  liability  was  expressly  made  conditional 
upon  non-payment  by  the  third  person, 254 

1)  Where  the  promise  was  to  pay,  if  the  third  person  did  not, 254 

(2)  Where  the  promise  was  to  see  the  promisee  paid,  or  words  to  that 
effect, 255 

Article  II.  Where  the  promise  is  collateral,  because  its  language  implied 
that  the  third  person  was  also  to  become  liable, 261 

(1)  Miscellaneous  cases,  depending  upon  the  use  of  particular  words,. . . .  261 

(2)  Where  the  promise  was  to  become  a  party  to  a  note  or  bill  of  exchange 

to  be  made  by  the  third  person, 263 

Article  III.  Where  a  promise  is  not  within  the  statute,  although  it  was 
in  terms  conditional  upon  non-payment  by  a  third  person, 273 


Chapter  Eighth. 

The  same  subject  continued.  Cases  where  the  interposition  of  other  legal 
principles  has  been  supposed  to  create  exceptions  to  or  qualifications 
of  the  third  rule, , , , , , 283 


CONTENTS.  7 

Article  I.  Where  the  person  benefited  by  the  transaction,  and  the  per- 
son who  came  in  aid  of  his  credit,  assumed  a  joint  liability  to  the 
promisee, 283 

Article  II.  Where  the  person  benefited  and  the  auxiliary  promisor 
undertook  concurrently  to  respond ;  but  the  person  benefited  was 
either  a  married  woman  or  an  infant, 299 

(1)  Observations  applicable  to  either  species  of  auxiliary  promise, 299 

(2)  Where  the  promise  was  auxiliary  to  that  of  a  married  woman, 303 

(3)  Where  the  promise  was  auxiliary  to  that  of  an  infant, 308 


Chapter  Ninth. 

Cases  which  are  not  within  the  statute,  although  the  third  person  and  the 
promisor  became  liable  for  the  same  debt,  because  they  were  not  so  lia- 
ble at  the  same  time.  The  subject  commenced  with  those  cases,  where 
the  extinguishment  of  the  third  person's  liability  resulted  from  some 
actor  omission  of  the  promisee,  other  than  an  express  discharge,. . . .  318 

Itule  Fourth. 

A  promise  to  assume  an  antecedent  liability  of  a  third  person  is  without 
the  statute,  if  the  third  person's  liability  had  become  extinct,  at  the 
time  when  that  of  the  promisor  came  into  existence, 318 

Article  I.  Origin  and  correct  definition  of  the  rule ;  in  what  cases  an 
executory  agreement  to  discharge  the  third  person,  or  to  do  some  act 
which  will  operate  to  discharge  him  will  satisfy  it, 319 

Article  II.  Where  the  discharge  of  the  third  person's  debt  arose  by 
operation  of  law,  in  consequence  of  some  act  or  omission  of  the 
promisee,  without  his  express  assent  thereto, 324 

(1)  Where  the  promisee  discharged  the  third  person  from  arrest  under  a 

capias  ad  satisfaciendum, 324 

(2)  Where  the  promisee  discharged  a  levy  upon  the  third  person's  goods, 

which  had  been  made  under  a  fieri  facias  or  a  distress  warrant, 331 

Article  III.  Where  an  abandonment  of  tlic  third  person's  liability  is 
inferred,  as  matter  of  fact,  from  .some  act  or  omission  of  the  promisee, 
without  any  agreement  to  that  effect, 337 

(1)  General  principles,  upon  which  the  application  of  the  statute  to  this 

description  of  cases  is  determined, 337 

(2)  How   far  the    question    is   material,  in    this    description  of  cases, 

whether  the  promisor  received  the  benefit  of  the  consideration  for 
his  promise, 3t7 

(3)  Cases  where  the  new  promise  was  in  terms  an  assumption  of  the 

liability  of  the  original  contractor, 353 


CONTENTS. 


Chapter  Tenth. 

The  same  subject  continued.  Cases  where  the  extinguishment  of  the 
tliird  person's  liability  was  effected  by  an  agreement,  to  which  he,  the 
promisor,  and  the  promisee  were  parties, 358 

Article  I.  The  doctrine  of  novation, 358 

Article  II.  Where,  by  consent  of  all  the  parties,  the  third  person's  antece- 
dent liability  to  the  promisee  was  discharged,  in  consideration  of  the 
promisor's  engagement  to  pay  to  the  promisee  a  debt  antecedently 
due  by  him  to  the  third  person, 360 

Article  III.  Where  the  third  person's  antecedent  liabilitj^  to  the  prom- 
isee was  discharged,  in  consideration  of  its  assumption  by  the 
promisor, 370 

(1)  Cases   illustrating  the  general  principle,  and  the  rule  that  the  three 

persons  in  interest  must  concur, 371 

(2)  Where  the  third  person  and  the  new  promisor  assumed  a  joint  liability, 

in  discharge  of  a  previous  liability  of  the  third  person  only, 382 


Chaptee  Eleventh. 

Cases  depending  upon  the  words  "  another  person."  The  subject  com- 
menced with  those  illustrating  the  general  proposition,  that,  in  order 
to  bring  the  promise  within  the  statute,  it  must  have  been  made  to 
the  creditor, 386 

Bule  Fifth. 

A  promise  to  discharge  the  debt  or  duty  of  another  is  not  within  the 
statute,  unless  it  was  made  to  the  person  to  whom  the  debt  or  duty 
was  to  be  discharged, 388 

Article  I.  Origin  of  the  rule.  How  it  is  reconciled  with  the  language 
of  the  clause  under  consideration, 388 

Article  II.  Cases  where  the  promise  was  not  made  to  the  creditor ; 
where  it  did  not  relate  to  a  liability  thereafter  to  be  incurred  by  the 
promisee  ;  and  where  the  promisee  was  the  plaintiff  in  the  action  to 
enforce  it,   390 


Chapter  Twelfth. 

The  same  subject  continued.  Cases  where  a  creditor  seeks  to  enforce  a 
contract  between  his  debtor  and  another  person,  providing  for  the 
payment  of  the  debt  by  the  latter, 407 


CONTENTS.  9 

Article  I.  The  question  arising  under  the  statute,  stated  and  examined 
upon  principle  ;  the  English  rule  with  respect  to  the  creditor's  right 
to  sue 407 

Article  II.  American  cases,  holding  that  the  statute  docs  not  apply  to 

the  action, 420 

Article  III.  American  cases,  holding  that  the  statute  applies  to  the 
action, 448 


Chapter  Thirteenth. 

The  same  subject  continued.  The  rule  with  respect  to  contracts  of 
indemnity  against  liabilities  thereafter  to  be  incurred  by  the  promisee,  453 

Article  I.  Where  the  promise  was  to  indemnify  the  promisee  against  a 
liability  to  be  incurred  by  him  alone,  without  the  intervention  of  any 
third  person, 453 

Article  II.  Where  the  promise  was  to  indemnifj'^  the  promisee  against 
a  liability  to  be  incurred  by  him,  at  the  request  of  the  promisor  only, 
but  as  security  for  the  fulfilment  of  a  third  person's  engagement  to  a 
fourth, 459 


THIRD   GENERAL  DIVISION. 

Cases  which  are  not  within  this  clause  of  the  statute,  although  all  the 
terms  of  the  statutory  description  of  the  promises  to  which  it  applies 
are  literally  satisfied,  because  they  are  not  within  its  spirit  and 
intent 488 


Chapter  Fourteenth, 

Cases  where,  at  the  time  of  the  promise,  the  promisor  was  already  liable 
for  the  debt  or  duty  assumed  by  him,  or  a  similar  one,  in  some  other 
form,  or  to  some  person  other  than  the  promisee ;  or  where  he  had 
previously  been  liable  therefor,  and  had  been  only  technically  dis- 
charged,    490 

TtuU  Sicrth. 

A  promise  is  without  the  statute,  if  its  effect  was  merely  to  remove  .^ome 
impediment  to  the  enforcement,  by  the  promisee,  of  a  liability  already 
resting  upon  the  promisor,  in  the  same  or  some  other  form  ;  although 
its  fulfilment  will  necessarily  result  in  the  discharge  of  the  precedent 
liability  of  a  third  person  to  the  promisee 490 


10  CONTENTS. 

Article  I.  Where  the  promise  contained  an  admissiorn  of  liability  on  the 
part  of  the  promisor,  as  a  primary  debtor ;  but  another  person  was  in 
fact  liable,  either  exclusively  or  with  him,  for  the  same  debt  or 
duty, 491 

A}{.TicLE  II.  Where  the  effect  of  the  promise  was  to  alter  the  form  of  a 
previously  existing  liability, 496 

Article  III.  Where  the  effect  of  the  promise  was  to  waive  a  legal  de- 
fence, against  an  action  founded  upon  a  previous  engagement  of  the 
promisor, 501 

Article  IV.  Where  the  promise  was  to  pay  the  promisor's  debt  to  a 
transferee  thereof,  in  order  to  discharge  a  debt  due  by  the  transferor 
to  the  promisee, 510 


Chapter  Fifteenth. 

Cases  where  a  promise  to  pay  a  third  person's  pre-existing  debt  is  not 
within  the  statute,  because  it  was  substantially  to  be  fulfilled  out  of 
the  means  of  the  debtor 519 

Rule  Seventh. 

A  promise  to  pay  the  pre-existing  debt  of  a  third  person  to  the  promisee, 
is  not  within  the  statute,  if  the  substantial  effect  of  its  fulfilment 
will  be  to  discharge  the  debt,  out  of  a  fund  furnished  to  the  promisor 
by  the  debtor,  in  contemplation  of  which  the  promise  was  made, . . .  528 

Article  I.  Origin  and  effect  of  the  rule ;  English  cases  recognizing  the 
principle  which  it  embodies, 528 

Article  II.  Where  the  promisor,  having  the  fund  in  hand,  undertook  to 
pay  a  debt  due  to  the  promisee,  from  the  person  who  furnished  the 
fund, 534 

Article  III.  Where  the  reception  of  the  fund,  and  the  making  of  the 
promise,  were  parts  of  an  agreement,  to  which  the  creditor,  the  orig- 
inal debtor  and  the  promisor  were  parties, 547 

Article  IV.  Whether,  if  the  fund  proves  to  be  insufficient  to  discharge 
the  promise,  the  promisor  can  ever  be  made  liable  for  the  excess  of 
the  debt 558 


Chapter  Sixteenth. 

Cases  where  a  promise  to  pay  a  third  person's  debt  is  not  within  the  stat- 
ute, because  the  property  of  the  promisor  was  then  subject  to  a  lien 
or  charge  for  the  payment  of  the  same  debt, 504 


CONTENTS.  11 

Rule  Eighth. 
A  promise  to  pay  the  debt  of  another  is  not  within  the  statute,  if  its  con- 
sideration was  the  abandonment  to  the  promisor  of  a  security  for  the 
payment  of  the  debt,  consisting  of  a  lien  ujion,  or  interest  in  proper- 
ty, to  which  the  promisor  then  had  a  subordinate  title, 565 

Abticle  I.  English  decisions  upon  the  subject  matter  of  this  rule,  and 
also  involving  the  questions  to  be  discussed  hereafter  in  this  connec- 
tion   566 

Abticle  II.  American  cases  wherein  the  rule  is  established,  and  its  appli- 
cation illustrated, 585 


Chapter  Seventeenth. 

A  defence  of  the  rejection,  as  unsound,  of  all  legal  propositions,  depend- 
ent upon  the  cases  cited  in  the  last  two  chapters,  except  those  em- 
bodied in  the  seventh  and  eighth  rules 599 

Article  I.  Examination  of  the  prevalent  theories  derived  from  Williams 
V.  Leper,  and  kindred  cases, 599 

Article  II.  Discussion  of  the  question  whether  the  abstract  proposition 
can  be  supported,  that  a  promise  to  pay  the  debt  of  another  is  not 
within  the  statute,  whenever  the  leading  object  of  the  promisor  was 
not  to  discharge  the  debtor,  but  to  subserve  some  interest  of  his  own, 
distinct  from  the  payment  of  the  debt,  and  the  consideration  moved 
to  him, 610 


Chapter  Eighteenth. 

Cases  where  a  guaranty  of  the  debt  of  a  third  person  is  not  within  the 
statute, 639 

Rule  Ninth. 

A  guaranty  is  not  within  the  statute,  if  it  was  made  upon  a  consideration 
moving  wholly  1  etwecn  the  parties  to  it,  and  related  to  the  payment 
of  a  debt  or  the  performance  of  a  duty  by  the  third  person  to  the 
promisee,  the  right  to  enforce  which  then  first  passed,  or  l)y  the  terms 
of  the  contract  was  thereafter  to  pass  to  him,  from  or  through  the 
guarantor, 640 

Article  I.  "Where  the  debt  or  contract  guarantied  was  transferred  from 
the  guarantor  to  the  guarantee,  at  the  time  of  making  the  contract 
of  guaranty,  upon  a  consideration  moving  wholly  between  the 
parties, 640 

Article  II.  Where  the  debt  guarantied  was  thereafter  to  be  contracted 
through  the  agency  of  the  promisor,  acting  as  the  factor  of  the  prom- 
isee, under  a  del  creih  re  commission, 655 


12  CONTEIS-TS, 


PART  THIRD. 
Of  agreements  made  upox  consideration  op  marriage, 671 


Chapter  Nineteenth. 

Cases  witliin  the  third  clause  of  the  fourth  section  of  the  statute, 673 

Article  I.  Object,  effect,  and  true  interpretation  of  this  clause, 673 

Article  II.  Nature  and  extent  of  the  marriage  consideration ;   what  per- 
sons are  entitled  to  avail  themselves  of  it, 683 

Article  III.  What  contracts  are  within  this  provision,  and  vice  versa,  . .   688 

(1)  General  principles  regulating  the  application  of  the  statute,  to  agree- 

ments made  in  contemplation  of  marriage, 688 

(2)  Cases  where  the  agreement  was  founded  upon  some  distinct  considera- 

tion, in  addition  to  that  of  marriage 695 


Chaptee  Twentieth. 

Peculiar  effect,  upon  the  agreements  which  fall  within  this  provision,  of 
the  equitable  doctrines,  whereby  relief  granted  to  a  party,  who  has 
performed  his  part  of  a  verbal  agreement, 708 

Article  I.  Whether  marriage  itself  is  such  a  performance,  as  to  call  into 

operation  the  equitable  rule, 709 

Article  II.  Whether  a  verbal  antenuptial  promise  will  support  a  post- 
niiptial  settlement  in  accordance  therewith,  or  a  postnuptial  written 
agreement  to  make  such  a  settlement, 716 

Article  III.  Whether,  in  the  absence  of  fraud,  equity  takes  any  distinc- 
tion, for  the  purpose  of  enforcing  specific  performance  between  an 
antenuptial  verbal  agreement,  and  an  antenuptial  ve-rbal  representa- 
tion of  an  intention, 730 


TABLE   OF   CASES. 


[An  asterisk  denotes  the  pajje  where  aa  abstract  of  the  case  is  given.] 


-A.. 

PAOK 

Adams  vs.  Anderson, 17;J 

Adams  vs.  Dauscy, S8'.),  4.'j4* 

Adams  vs.  Hill 25'J*,  aT(i 

Adams  vs.  Spalding, 121 

Adcock  vs.  Fleming, U.">4 

Adkinson  vs.  Barlleld 5!)7 

Aiken  vs.  Duren, 4!)2 

Albert  vs.  Winn,    122 

Alcalda  vs.  Morales, 441 

Aldrich  vs.  Ames, 474* 

Alger  vs.  Scoville,  3S8,  400*,  445,  4S6 

C20,  (i2;3,  628* 

Allaire  vs.  Oiiland,    3%,  4.5(i* 

Allen  vs.  Prvor If.!)* 

Allen  vs.  Scarli',  25i» 

Allen  vs.  Thomas, 441 

Allen  vs.  Thompson, 5!)(i* 

Alliii:;  vs.  Munson, 116* 

Allshoiise  vs.  Ramsay, 141,  381 

AlL-'tan  vs.  C'<lllle(^ 52(i 

Anderson  vs.  Davis, 381 

Anderson  vs.  llayman, 219* 

Andre  vs.  Bodman, 330,  627 

Andrews  vs.  Jones 683,  693*,  722 

Andrews  vs.  Smith, 227,  5.30* 

Anstey  vs.  Marden, 76,  189*,  319,  320 

330,  5^,  (104 

Antonio  vs.  Clissey, 381 

Arbuekle  vs.  Hawks, 240 

Ardern  vs.  Kowney, 528*,  561 

Argenbright  vs.  Campbell, 724* 

Armstrong  vs.  Flora, 3.S1 

Arnold  vs.  Lyman, 44.") 

Arnold  vs.  Stedman, 630* 

Ash  vs.  Abdv 72* 

Ashford  vs.  Kobinsou, 510*,  6.>4 

Atkins  vs.  Farr, (90 

A'kins  vs.  Hill, 99,  122 

A\torney  General  vs.  Chapman, 113* 

Attorney  General  vs.  Higham 114 

Audul)on  vs.  The  Excelsior  Insurance 
Company, 74* 


B. 

Babcock  ts.  Eckler, 722 

Backus  vs.  Clark, .    143,  240 

Bagley  vs.  Sasser 30 1 

B:iker  vs.  Dillmanu, 148,  472* 

Baldev  vs.  Parker, 77 

Ball  vs.  Gates 252 

Billiard  vs.  Walker 8t 

Bampton  vs.  Paulin, 566,  575*,  602 

Bank  of  Ireland  vs.  Archer 264 

Bank  of  Kimtucky  vs.  Brooking, 50.) 

Bank  of  Missouri  vs.  Benoist, 442 

Bank  of  Trov  vs.  Topping, 84,  110* 

Barber  vs.  Fo.x 3t7 

Barg<'r  V8  Collins 52(1 

Barker  vs.  Buckliu 413,  429*,  431,  4.39 

440,  443,  543,  5'Jl,  610 

Barker  vs.  Prentiss 161 

Barkworth  vs.  Young, 729 

Barnard  vs.  Pomf rett, 99 


PAOI 

Barnstincvs.  Eggart, 597 

Barrel!  vs.  Trussell 84,  573*,  602 

Barringer  vs.  Warden, .•}()!) 

Barrow  vs.  Barrow, ()Si 

Barry  vs.  l^insom, 464,  470*,  4S0 

Barry  vs.  Kush, 117 

Bartholomew  vs.  Jackson, 276* 

Barton's  Case, 12;} 

Bason  vs.  Ilughart 381 

Bastard  vs.  Stukely, 12;j 

Bates  vs.  SUirr, 240 

Batson  vs.  King, 4(h1*,  480 

Battersbee  vs.  Farrington, 71(i*,  724 

Bawdcs  vs.  Amhurst, 712,  715 

Bayard  vs.  HolTman, 722 

Beach  vs.  Hungerford, 366,  367* 

Beal  vs.  Brown, 227 

Beals  vs.  Beals,  43U 

Beaman  vs.  Russell, 483* 

Beaty  vs.  Grim, r,:A 

Becker  vs.  Torrance, 4:}5*,  590 

Beers  vs.  Robinson, 4.')0 

Belden  vs.  Lamb 6.")5 

Bellerjcau  vs.  Kotts,  124 

Benedict  vs.  Dunning, 593* 

Bennett  vs.  Pratt, 140,394* 

Benson  vs.  Walker, 525 

Bentley  vs.  Griffin, 304 

Berly  vs.  Taylor 4.37 

Berry  vs.  Dorcmus, 441 

Bigelow  vs.  Davis, 437 

Billingslev  vs.  Dempewolf, 240,  260* 

Bird  "s.  Gammon, 200,  37 1  * 

Bird  vs.  Lanins, 439 

Birkmyr  vs.  Darnell, .  .7.5,  9.\  1.33,  19.3,  211,  212* 
216,  217,  254,  256,  301,  302,  567 

Bize  vs.  Dickason,  6.56 

Blake  vs.  Cole, 473* 

Blake  vs.  Parlin,  142*,  2:W 

Blank  vs.  Dreher 255,  278* 

Bleeker  vs.  Bingham 688 

Blodgett  vs.  Town  of  Lowell, 277* 

Blount  vs.  Hawkins 500* 

Blow  vs.  Maynard, 722,  724 

Blunt  vs.  Boyd, 431* 

Bohanau  vs.  Pope, 414,  42.3* 

Bold  vs.  Hutchinson 745 

Bourka  Mire  vs.  Darnell.  (See  Birkmyr.) 

Bonbonus,  Ex  parte,  504 

Booker  vs.  Tally, 240,  253 

Borst  vs.  Corey 722 

Bourkmire  vs.  Darnell.  (See  Birkmyr.) 

Bourne  vs.  Mason 410,  411 

Bovy's  Case,  Sir  Ralph, 674 

Bowman  vs.  Tallman, 122 

Boyce  vs.  Owens,  84,  141,  .597 

Boyd  vs.  Stone 181 

Boykin  vs.  Dohlonde 240    2H4 

Bradley  vs.  Richardson, 662* 

Brady  vs.  Sackrider, ... 210 

Braman  vs.  Hess ().55 

Brav  vs.  Freeman,    200,  201* 

Bresler  vs.  Pendell, 3 13*,  (i27 

Brewer  vs.  Dyer 413.  4;J5,  445 

Brewster  vs.  ^ott, 605 


14 


TABLE  OF  CASES. 


PAOE 

Brewster  vs.  Silence, 052* 

Urice  vs.  Kill":, 451 

Bi-iir-s  vs.  Evans, 233*,  ^14 

BristDW  vs.  Lane 440 

Brock  vs.  Thompson, 055 

Brodic  vs.  St.  Paul, 'i'T 

Broiison  vs.  Stroud 259,  269*,  284 

Brooks  vs.  Lynde, 124 

Brown  vs.  Adams, 482-^ 

]}rown  vs.  Barnes C3''' 

Brown  vs.  Bradshaw, 231* 

Brown  vs.  Carter, 683 

Brown  vs.  Curtiss.    (See   Curtiss    vs. 
Brown.) 

Brown  vs.  George, 143,  240 

Brown  vs.  Hazen 381 

Brown  vs.  O^Brien, 441 

Brown  vs.  Strait, 440 

Brown  vs.  Weber 134,  295,  350*,  590,  GIO 

Brownini,'  vs,  Stallard, 302* 

I'.rush  vs.  Carpenter,   483* 

Buchanan  vs.  Dt^shon, 683 

Buckoridi^e  vs.  Ingram, 70 

Bucklin  vs.  Ward 526 

Buckniyr  vs.  Darnall.  (See  Birkmyr.) 
Buckniyr  vs.  Darnell.  (See  Birkmyr.) 

Buhner  vs.  Hunter, 686 

Burkmire  vs.  Darnel.  (See  Birkmyr.) 
Burkmire  vs.  Darnell.  (See  Birkmyr.) 

Burr  vs.  Boers 435 

Burr  vs.  Wilcox, 5S8 

Burt  vs.  Horner 650* 

Burton  vs.  Baker, 655 

Busheevs.  Allen 240 

Bushell   vs.   Beavan,..  184*,  187,  266,  2(iT,  271 

Butcher  vs.  Steuavt, 323,  320*,  330,  384 

Button  vs.  Thrailkill, 140 

Byrdvs.  Odem, 74 


Cabot  Bank  v8    Morton,  169*,  175 

Cahill  vs.  Bigelow, 235*,  2.36 

Cailleux  vs.  Hall, 552 

Cameron  vs.  Clarke,  441 

Campbell  vs.  Findley, 395,  451* 

Campbell  vs.  Lord  Netterville, 682 

Campion  vs.  Cotton, 685 

Canfield  vs.  Monger, 525 

Caperton  vs.  Gray,  141 

Cardell  vs.  McNiel 652* 

Carnegie  vs.  Morrison,  445 

Carnegie  vs.  Waugh,   410 

Carr,  E.X  parte,   174,  676 

Carter  vs.  Toussaint, 77 

Carville  vs.  Crane, ....  187,  266*,  269,  272,  469 

Case  vs.  Barber 320 

Casey  vs.  Brabason, 160 

Castfingvs.  Aubert,...  191*,  389,  492,498,  566 
571*,  573,  575,  576,  584,  601,  602,  604,  668 

Caston  vs.  Moss, 140 

Caton  vs.  Caton 706,  729,  746*,  751,  7.52 

Chambers  vs.  Bobbins 121* 

Chandler  vs.  Davidson, 92,  107* 

Chapin  vs.  Lapham 300,  301,  313*,  473 

Chapin  vs.  Merrill, ....  200,  397.  468*,  470,  472 
475,  477,  478,  590 

Chaplin  vs.  Rogers 76 

Chase  vs.  Day 230* 

Chater  vs.  Beckett, 76,  141,  199,  330 

Chichester  vs.  Cobb, 682 

Clancv  vs.  Piggott, 141,  578* 

Clapp" vs.  Lawton, 84,  106,  416,  418 

446*,  558,  610 

Clark  vs.  Hall, 536* 

Clark  vs.  Herring, 124 

Clark  vs.  Levi, 314* 

Clark  vs.  Parker 682 

Clark  vs.  Pendleton 690 

Clarke  vs.  Cock, 264 


PAGK 

Clay  vs.  Walton, 352,  627,  634* 

Clayland's  lessee  vs.  Pearce, 48 

Clerk  vs.  Withers 331 

Cleveland  vs.  Farley.  (See  Farley  vs. 

Cleveland.) 

Cleverley  vs.  Brett, 113 

Click  vs.  McAfee, 381 

Clymer  vs.  De  Young, 554* 

Cobb  vs.  Titus 655 

Cochrane  vs.  Green, 524* 

Cole  vs.  Dyer, 141 

Cole  vs.  Shnrtletr, 381,  501* 

Coleman  vs.  Eyles,...    223 

Collins  vs.  Row 105,  127* 

Colombine  vs.  Penhall, 686 

Colt  vs.  Colt, 124 

Colt  vs.  Nettervill,  . . 30 

Colt  vs.  Root, 398* 

Colwcll  vs.  Alger 104 

Combs  vs.  Harsbaw, 194* 

Compton  vs.  Jones, 526 

Conkey  vs.  Hopkins, 397* 

Conn  vs.  Coburn, 316* 

Conneratvs.  Goldsmith, 300,  304,  306* 

Connor  vs.  Williams,  412,  413,  437 

Conolly  vs.  Kettlewell 255*,  259 

Consociated  Presbyterian  Society,  etc., 

vs.  Staples 369 

Cook  vs.  Barrett, 369 

Cook  vs.  Elliott,     84 

Cookes  vs.  Mascall, 713,  714* 

Coolidge  vs.  Payson, 264 

Cooper  vs.  Chambers, 331* 

Cooper  vs.  Ellston, 76 

Cooper  vs.  Page 655 

Cooth  vs.  Jackson, 77 

Corbett  vs.  Cochran, 376*,  597 

Corbin  vs.  McChesney, 384* 

Cork  vs.  Baker,     690* 

Corkins  vs.  Collins, 141,  591* 

Corporation  of  Clergymen's  Sons  vs. 

Swainson, 114 

Cotterill  vs.  Stevens, 381 

Couturier  vs.  Hastie,..  78,  604,  667*,  668,  669 

Covvell  vs.  Oxford, 124 

Cram  vs.  Hendricks, 6.55 

Crane  vs.  Gough, 683,  701*,  727 

Creel  vs.  Bell 526 

Cripps  vs.  Hartnoll, 465*,  467,  469 

Crocker  vs.  Whitney, 526 

Croft  vs.  Smalhvood,  218,  220*,  376 

Cropper  vs.  Pittman, 240,  257*,  259,  263 

Cross  vs.  Richardson,  631 

Crow  vs.  Rogers, 410 

Crowfoot  vs.  Gurney, 522* 

Crown  vs.  Brown, 175 

Cumberland  vs.  Codrington, 437 

Currier  vs.  Hodgdon, 526 

Curtis  vs.  Brown,  ...  106,  381,  413,  418,  443* 

448,  556,  557,  558,  588 

Curtiss  vs.  Brown,..  646*,  647*,  648,  649,  650 

651,  6.52 

Cutler  vs.  Hinton, 249,  251,  262*,  284 

Cuxon  vs.  Chadley 363*,  377 


13. 

D'Aguilar  vs.  Drinkwater, 682 

Darling  vs.  March,  605 

Darlington  vs.  McCunn, 240 

Darnell  vs.  Tratt 223*,  253,  304 

Dater  vs.  Wellington, 74 

Dauber  vs.  Blackney, .  653 

Davenport  vs.  Runlett, 505 

Davidson  vs.  Graves, 722 

Day  vs.  Elmore, 655 

Day  vs.  Patterson, 439 

Dearborn  vs.  Parks 420*,  421 

De  Barante  vs.  Gott 683 

Do  Bcniales  vs.  Fuller, ....  411 


TABLE  OF  CASES. 


16 


PAGE 

De  Biel  vs.  Thomson.  (See  Haminers- 
ley  vs.  De  Biel.) 

Decker  vs.  Sluiffer, 413,  438* 

Deeks  vs.  Striitt, l-'S 

Delaware  Bank  vs.  Jarvis 6W 

Delaware,   etc.,   Company  vs.  West- 
chester County  Bank, 413,  4:U,  4.'n 

Derby  vs.  Plielps, G!tO 

Devlin  vs.  Wood«ate, 347*,  ;!49,  027 

Dexter  vs.  Blancliard 140,  315*,  5,S,S 

Dillon  vs.  Coppin, 7215 

Dilts  vs.  Parke,  544* 

DiiiKeldein    vs.    The  Third    Avenue 

Hailroad  Company, 435* 

Dix  vs.  Burford, V£i 

Di.xon  vs.  Frazee, 233* 

Dixon  vs.  Hatfield, 52!t* 

Doaiie  vs.  Newman, 47>i 

Dob  vs.  Halsey, 505 

Dodson  vs.  Mackey, 242 

Doe  vs.  Guy, 123 

Doe  vs.  Mann  ins, (jK4 

Dot>littlo  vs.  Dininny, I(i3* 

Dorwin  vs.  Smith, 457 

Doutchuss  vs.  .Jones 4it2 

Doujjlas  vs.  Vincent 681*,  082 

Downi-y  vs.  Hinchman, 190* 

Doyle  vs.  White, 240 

Drake  vs.  Flewellen, 300 

Drakelcy  vs.  De  Forest, 171 

Draujrhan  vs.  Bunting 84,  381,  482* 

Dufolt  vs.  Gorman, 2.55 

Du«an  vs.  GittinRs 6S4 

Dunbar  vs.  Williams 270* 

Duncomb  vs.  Tickrid>re 299,  301,  302* 

Duiulas  vs.  Dutens,  712, 716*,  717,  719,  72U,  721 

Duiilap  vs.  Thorne, 597* 

Dunn  vs.  Tliar[), 674 

Dunn  vs.  West, 479* 

Durham  vs.  Arledtje, 141,  .597*,  610 

Durham  vs.  Manrow,  .  167,  285,  648*,  6.50,  651 

Durham  vs.  Taylor, 678,  709 

Dutton  and  wife  vs.  Poole,  . . .  408*,  411,  4:58 

Dyer  vs.  Gibs(jn, 6.54 

Dyprert  vs.  Kemerschnider, 699*,  722 

D"  Wolf  vs.  Kabaud 210,  229,  267 

E, 

Earle  vs.  Crane, 4:31* 

Easter  vs.  White 480* 

Eastwood  vs.  Kenyon,. . . .  388,  390*,  392,  395 
396,  397,  398,  454 

Eaton  vs.  Tillinghast, 688 

Eddy  vs.  Roberts, 4i;$,  439*,  440,  010 

Edwards  vs.  Kelly, 200,  332*,  566,  .574* 

576,  602 

Elder  vs.  Warfleld, 167,  219,  240,  257 

Elkins  vs.  Heart, 132,  i:«,  184* 

EUicott  vs.  Peterson's  Ex'rs, 240,  302* 

Elliot  vs.  Giese, 84 

Ellis  vs.  Nimmo 72:3* 

Ellison  vs.  Jackson  Water  Co.,.  339,  ;349,  627 

Jlllison  vs.  Wi.sehart, 276,  :380* 

Ellwood  vs.  Monk, 429,  .5.50*,  ,590 

Emerick  vs.  Sanders, 451,  .540*,  .5.58 

Emerson  vs.  Slater, . . .  230,  352,  388,  .557,  620* 

624,  (i27 
Emmet  vs.  Dewhnrst,  . . .  142*,  271,  330*,  372* 

Evans  vs.  Bicknell, 174 

Evans  vs.  Lohr, 321 

Everett  vs.  Morrison, 259 

Ewins  vs.  Calhoun, 173 

Exchantre  Bank  vs.  Rice, 159 

Eyre  vs.  Dunsford, 172*,  173 

Falres  vs.  Lodanc, 143,  240 

Fairlie  vs.  Denton, 519,  522* 

Parish  va.  Wilson, La 


PAGB 

Farley  vs.  Cleveland, 334,  429,  !>t4,  5.50* 

589,  590,  ti23 

Farlow  vs.  Kemp, 439 

Farmers'  Bank  vs.  Brown, 441 

Farwell  vs.  Jacobs 124 

Faulkner,  In  the  matter  of, 97* 

Fay  vs.  Bell, 590 

Felton  vs.  Dickinson, 445 

Files  vs.  McLeod , 4se 

Finch  vs.  Finch, 706*,  707,  712,  726*,  728 

First  Baptist  Church  of   Chicago  vs. 

Hyde 517* 

Fish  vs,  Hutchin.son,...141,201*,205,212,591 

Fish  vs.  Thomas 494* 

Fisher  vs.  Beckwith 161 

Flskc  vs.  .McGregory 401*,  417 

Fitzgerald  vs.  Dressier, 1135,  46:5,  .570,  .573 

581*,  598,  602,  (i04 

Flanders  vs.  Crolius, 232* 

F'lemm  vs.  Whitmore, 457 

Flowers  vs.  Kent, 674 

Ford  vs.  Adams, 525 

Ford  vs.  Finney, 441 

Ford  vs.  Stuart, (i83 

Forth  vs.  Stanton, ....  101,  1*5,  144,  167,  201 
570,  571,  573,  578,  583,  603 

Fowler  vs.  Clearwater, 6.53 

F\)wler  vs.  Moller, 142* 

Fraser  vs.  Thompson, 683,  6.S6 

F'rench  vs.  French, 372* 

French  vs.  Grindle, 655 

French  vs.  New 74 

F^rench  vs.  Thompson, 597* 

F'rost  vs.  Bengough, 241 

Fullani  vs.  Adams, 148.  405,  4,27,  527,  611 

014*,  619,  (>51,  033 
Furbish  vs.  Goodnow,. . .  84,  106, 141,  1.52,  167 

444*,  527,  556,  628 


Gackenback  vs.  Brouse, 647 

Gall  vs.  Comber, 6,56 

Gale  vs.  Lindo 677 

Gallager  vs.  Brunei 178,  179*,  272 

Gansevoort  vs.  Williams, ,505 

Gardiner  vs.  Hopkins, .590 

Gaunt  vs.  Hill, 3:30 

Gell  vs.  Vermedun 674 

G  ibbons  vs.  McCasland, .502* 

Gibbs  vs.  Blanchard,...  288*,  291,  292, 29.5, 297 

Gleason  vs.  Briggs 240,  ;{81 

Gold  and  Sill  vs.  Phillips,...  427*,  549*,  5.50 

552,  590 

Goldicutt  vs.  Townsend, 721*,  745 

Goldsmith  vs.  Brown, 6.55 

Goodman  vs.  Cliase, ...  135,  320, 324*,  329,  ;330 

591,  603 

Goodrich  vs.  Gordon 264 

Goodrich  vs.  Nickols, 188 

Goodspeed  vs.  F'uller, 457 

Goodwin  vs.  Chaffee, 124 

Goodwin  vs.  Gilbert, 108* 

(i ordon  vs.  Downey, ,526 

Gordon  vs.  Martin, 27,5* 

Gorin  vs.  Gordon, 688 

Ciorton  vs.  Dyson, 123 

Gould  vs.  Moring, 2i59* 

Grav  vs.  Hill, 171* 

Green  vs.  Cre.sswell, . . .  462*,  463,  464,  46.5,  406 
409,  470,  471,  472,  47,5,  480,  481,  4,s;3,  003 

Greene  vs.  Cramer 679,  683 

Greening  vs.  Brown, 126* 

(ireenleaf  vs.  Uurbank, 50()* 

Gregory  vs.  Harinan, 123 

Grillith  vs.  Sheffield, 03 

Griggs  vs.  Seeley 74 

Grove  vs.  Dubois, 0,56 

Grover  vs.  Sims, 367* 

Gull  vs.  Lindsay 578,  580*,  60'.J 

Gunnels  vs.  Stewart, 865 


16 


TABLE   OF   CASES. 


„  PAGE 

Hackleman  V3.  Miller, 91, 114*,  (i;j4 

Hackney  vs.  Hackney, 713,  7i;i* 

Haines'  Administrator  vs.  Tarrant, . .    310* 

Hair  vs.  Hair, 693*,  TOO 

Hail  vs.  Fanner 647*,  649,  651 

Hall  vs.  Marston, 445 

Hall  vs.  Rogers, 6,54 

Hall  vs.  Wood, 240 

Haniar  vs.  Alexander, 176*,  179 

Hamilton  vs.  Lyooniins  Ins.  Co., 75 

Hammersley  vs.  De  Biel,. . .  679,  680,  683,  688 
697,  713,  730,  728,  731*,  736,  737,  738 
739,  740,  741,  744,  745,  746,  750,  7.51,  753 

Hanford  vs.  Hisgins, 240 

Hapgood  vs.  Houghton, 124 

Hardesty  vs.  Jones, 404 

Hardey  vs.  Green, 6S5* 

Hargraves  vs.  Parsons, 391*,  643* 

Harrington  vs.  Ricli, 84,  91, 106, 118* 

Harris  vs.  De  Bevoice,  411 

Harris  vs.  Huntbach, . . .  200,  395, 299,  300,  3(J1 
310*,  311,  313,  315 

Harrison  vs.  Cage, 689*,  690 

Harrison  vs.  Sawtel, 467*,  469,  470,  475 

Hart  vs.  Minors, 133 

Haslock  vs.  Ferguson, 174 

Hastie  vs.  Couturier.    (See  Couturier 
vs.  Hastie.) 

Hatcher  vs.  Robertson, 709 

Hawkes  vs.  Saunders, 99,  123,  125* 

Hay  vs.  Green, 98,  115,  135* 

Haycraf t  vs.  Creasy, 173* 

Haydon  vs.  Christopher, 365* 

Hazen  vs.  Bearden, 340 

Hearn  vs.  Waterhouse, 175 

Heaton  vs.  Angier, 366*,  426 

Hetfleld  vs.  Dow, 240,  284* 

Hicock  vs.  McKay, 430,  446 

Hill  vs.  Doughty, 140*,  293* 

Hill  vs.  Raymond, 237* 

Hilton  vs.  Dinsmore, 141,537* 

Hinkley  vs.  Fowler, 423 

Hindman  vs.  Langford, 597 

Hitchcock  vs.  Lukens 171,  440 

Hodges  vs.  Eastman, 526 

Hodges  vs.  Hall, 240,  253 

Hodgson  vs.  Anderson, 514*,  523,  531 

Hoffman  vs.  Schwaebe, 430* 

Holland  vs.  Clark, 123 

Hollingsworth  vs.  Martin, 493* 

Holmes  vs.  Knights, 75,  467,  476* 

HoIIis  vs.  Wliitoing, 712 

Holloway  vs.  Headington, 733 

Holt  vs.  Brien, 304 

Homans  vs.  Lambard, 240,  244* 

Hoover  vs.  Morris, 496* 

Hoplcins  vs.  Lis  well, 509 

Hopkins  vs.  Richardson, 654 

Hoppock  vs.  Wilson, 240 

Hornby  vs.  Lacy, 656* 

Hotchkiss  vs.  Ladd  and  Warner, 283* 

Hough  vs.  Gray, 645* 

Hougliton  vs.  lioughton, 74 

Houghton  vs.  Houghton, 707,  735*,  738 

Hougliton  vs.  Matthews, 656 

Houlditch  vs.  Milne, ......  566,  570*,  578,  603 

603 

Howard  vs.  Coshow, 404 

Howe  vs.  Buffalo,  etc.,  R.  R.  Co., 331 

Howe  vs.  Talmer, 76,  77 

Howes  vs.  Martin, 389,  4.53* 

Hoyt  vs.  Murphy, 441 

Huher  vs.  Ely, 437 

Huckabee  vs.  May, 441 

Hu^'hcs  vs.  Stringfellow, 171 

Hunt  vs.  Adams, 2.59* 

Hunt  vs.  Brown, 647* 

Huntington  vs.  Harvey, 507* 

Huntington  vs.  Wellington, 175,  654 


I. 

Ingalls  vs.  Lee, 655 

Ingraham  vs.  Gilbert, 276 

Israel  vs.  Douglas, 513,  519,  520* 

Izard  vs.  Izard, 72a 


J. 


Jackson  vs.  Bowen, 331,  337 

Jackson  vs.  Post, 723 

Jackson  vs.  Rayner,. .  140,  539,  542*,  544,  549 

Jarmain  vs.  Algar, 183,  187,  266,  267 

Jasigi  vs.  Brown, 175 

Jefferys  vs.  Jefferys 733 

Jenkins  vs.  Eldridge, 709 

Jennings  vs.  Webster, . 429,  550* 

Jepherson  vs.  Hunt, 205*,  388,  628 

Jessel  V.S.  Williamsburgh  Ins.  Co., 526 

Johnson  vs.  Collings, 159,  264,  520 

Johnson  vs.  Gilbert, 646* 

Johnson  vs.  Johnson, 123 

Johnson  vs.  Morris,  541*,  558 

Johnson  vs.  Noonan, 163 

Jolley  vs.  Walker, 381 

Jones  vs.  Ballard, 365,  597 

Jones  vs.  Cooper, 213*,  214,  215,  254,  256 

Jones  vs.  Henry, 723 

Jones  vs.  Letcher, 480* 

Jones  vs.  Orchard, 467* 

Jones  vs.  Palmer, 654 

Jones  vs.  Robinson, 410 

Jones  vs.  The  Adm'rs  of  Shorter, 478* 

Jones  vs.  Stienbergh, 655 

Jones  vs.  Tanner, 123 

Jones  vs.  Wallver, 141,  591* 

JordenA^^.  Money,...  684,  691,  692*,  740*,  742 

743,  745,  746,  751,  752 

Julian  vs.  Shobrooke, 159 


K. 
\ 

Kay  vs.  Crook,  728 

Keate  vs.  Temple, 221*,  256 

Keitli  vs.  Kibbe,  252* 

Kelley  vs.  Commonwealth  Ins.  Co.,..        75 

Kelly  vs.  Roberts, 436* 

Kelsey  vs.  Hibbs, 171,  481*,  610 

Kershaw  vs.  Whitaker, 91 

Kimball  vs.  Comstock, 175 

Kimball  vs.  Newell, 304*,  308 

Kimball  vs.  Noyes, 441 

King  vs.  Despard, 354*,  590,  627 

King  vs.  Hutchins, 369 

King  vs.  Whitely, 688 

King  vs.  Wilson, 140 

Kingsley  vs.  Balcome, 467,  469*,  472,  475 

481,  483,  591,  610 

Kinloch  vs.  Brown 250,  251,  358* 

Kinnard  vs.  Daniel, 723 

Kinning,  Ex  parte, 393 

Kirkham  vs.  Marter, 140,  193*,  194 

201,  303*,  31T 

Knapp  vs.  Hanford,  124 

Knox  vs.  Nutt, 340 

Kreutz  vs.  Livingston, 441 

Kurtz  vs.  Adams, 340 

Kutzmeyer  vs.  Ennis, 353,  634*,  627 

L,. 

Lacy  vs.  McNeile, 513*,  521,  525 

Ladd  vs.  Blunt, 331 

Lafltte  vs.  Lawton, 688 

Lamb  vs.  Donovan, 439 

Lamb  vs.  Smith 124 

Lamlee  vs.  Hanman, 677 

Lanipson  vs.  Hobart,, 141,  631 


TABLE   OF   CASES. 


17 


PAOK 

Laiidis  vs.  Royer,  S40,  592* 

Lane,  Ex  parte  ;n  re  Lendon, . .   383* 

Lane  vs.  BurRhart, 281,  325,  32()* 

Lane  vs.  Steward, (155 

Lang  vs.  Fiskc,    526 

Lark  V8.  Linstead, 124 

Larson  vs.  Wyman, 339 

Lassence  vs.  Tierney, 712,  736*,  738 

Lathrop  vs.  Briijgs 331 

Lavencler  vs.  Blackstone, 674 

Laver  vs.  Fielder, 729* 

Law  vs.  Wilkin, 313* 

Lawrence,  Es  parte. . .   331,  Wi 

Lawrence  vs.  Fox,  412,  413,  419,  434*,  346,  437 

Leak  vs.  Morrice, 712 

Ledlow  vs.  Becton, 281*,  387 

Lee  vs.  Fontaine, 440 

Leggat  vs.  Reed, '. .    218* 

Leggett  vs.  Rjiymond, 647* 

Leland  vs.  Crcyon, 240 

Lennnon  vs.  Box,  62!)* 

Leonard  vs.  Mason, 161 

Leonard  vs.  Vredenburgh 145,  230,  397 

585,  589,  609,  610,  615,  619,  &2:i 

Leverick  vs.  Meigs, 656,  657* 

Lieber  vs.  Levy, 141,  591* 

Lilly  vs.  Huy.s 411,  412,  519,  526 

Lines  vs.  Smith 84 

Lippincott  vs.  Ashfleld, 560*,  563 

Littlefleld  vs.  Shee,  303 

Liversidge  vs.  Broadbent, 520,  523* 

Lloyd  vs.  Maund,  , 241 

Loffus  vs.  Maw,  728,  746* 

Logan  vs.  Wienholt 729* 

Loomis  vs.  Ncwhall, 236*,  237,  354 

Loomis  vs.  Smith, 240 

Loonie  vs.  Hogan, 266 

Lord  vs.  Davison, 381* 

Love's  case,  . .' 584*,  601 

Love,  ex'r  vs.  Iloneybourne, 117* 

Loxley  vs.  Heath 688,  720 

Lucas  vs.  Chamberlain, 479* 

Lucas  vs.  Payne, 555* 

Luders  vs.  Austey, 679 

Luff  vs.  Pope, 266 

Lumley  vs.  Palmer, 159 

Luqueer  vs.  Prosser, 645*,  647 

Lyde  vs.  Barnard, 31,  174 

LythvB.  Ault, 383 


m:. 

McBumie,  Ex  parte 686 

McCaffll  vs.  Radcliff, 240,  253 

McCoubray  vs.  Thomson, 410 

McEvers  vs.  Mason, 264 

McKay  vs.  Royal 122 

McKenzie  vs.  Jackson, 440,  561*,  563 

McKenzie  vs.  Scott, 656 

McKinney  vs.  Whiting 175 

McMuUen  vs.  Mayo, 74 

McNeil  vs.  Ouince, 124 

Macrory  vs.  Scott 497*,  643 

Madden  vs.  McCray, ...    5.35* 

.Madox  vs.  Nowlan 682* 

Maggsvs.  Ames 267,  304,  305* 

Magniac  vs.  Thompson, 683,  685 

Mallett  vs.  Bateman 187,  270*,  624 

Mallett  vs.  Halfpenny, 715* 

MaUory  vs.  Aillett,  .    84,  133,  141,  146,      158 

295,  332,  472,  544,  585,  588* 

595,  610,  614,  615,      624 

Halone  vs.  Keener, 654 

Mann  vs.  Blancbard, 175 

Mann  vs.  Mann, 441 

Manny  vs.  Frasier, 442 

Manrow  vs.  Durham.    (See  Darham  vs. 
Manrow.) 

Marchington  vs.  Vernon, 410 

Marcy  vs.  Crawford, 466* 

3 


PAoa 

Marshall  vs.  Morris, 683 

Martin  vs.  Black 127 

Martin  vs.  Chapman, 74 

Martin  vs.  England •.   333* 

Martyn  vs.  Hind, 410 

Mason  vs.  Hull 413,  440*,  441,  628 

Mason  vs.  Hunt, 264 

Masters  vs.  Marriott, 274*,  27.S 

Mather  vs.  Perry 551*,  553 

Matheson  vs.  Crain, 526 

Matson  vs.  Wharam,.  211,  214*,  216,  220,  225 

256,  293.  297 

Matthews  vs.  Milton, 291*,  292 

Maule  vs.  Bucknell, . .  388,  450,  610,  616*,  619 

620,  631 

Maunscll  vs.  White,  739* 

Mawbrey  vs.  Cunningham, ....  213*,  214,  215 

234,  256,  660 

Maxwell  vs.  Hayries, 423 

Mazuzan  vs.  Mead, 655 

Mease  vs.  Wagner,...  219,  240,  279*,  300,  387 

Meech  vs.  Smith l:J6,  690 

Meert  vs.  Moessard, 120* 

Mellen  vs.  Whipple, 445* 

Merrill  vs.  Engfesby, 5;j4* 

Mercein  vs.  Andrus 334*,  335,  590 

Merritt  vs.  Scott, 688 

Merry  vs.  Ryves, 682 

Mersereau  vs.  Lewis, 397*,  486 

Metcalfe  vs.  Shaw, 804 

Meyer  vs.  Haworth, 303 

Miles  vs.  Boyden, 124 

Millard  vs.  Porter, 369 

Miller  vs.  Gaston, 646* 

Miller  vs.Long, 305* 

Mills  vs.  Brown, 478* 

Mills  vs.  Wyman, 84 

Moar  vs.  Wright, 101*,  526 

Mobile,   etc..  Insurance  Company  vs. 

McMillan, 75 

Money    vs.    Jorden.    (See  Jorden  vs. 

Money.) 
MonUcute,  Lady,  vs.  Maxwell, . .  697,  710*,  714 

716,  720 

Monteflori  vs.  Monteflori,  677 

Montgomery  vs.  Henderson, 674 

Moore  vs.  Bushcll, 411 

Moore  vs.  Crof  ton, 723 

Moore  vs.  Hart, 679,  680* 

Moorhouse  vs.  Colvln, 729* 

Morgan  vs.  Thomas 95 

Morgan  vs.  Yarborough, 690 

Morfey  vs.  Boothby 547* 

Morris  vs.  Cleasby,  656,.  657,  663,  664,  665,  666 

Morse  vs.  Bellows,  526 

Mosely  vs.  Taylor 84 

Moses  vs.  Norton, 239* 

Motley  vs.  Manufacturers'  Ins.  Co., 423 

Mountney  vs.  Andrews 331 

Mount  Olivet,  etc.,  Co.  vs.  Shubert, 526 

Mowry  vs.  Todd, 526 

Muldrow  vs.  Agnew, 6.55 

Mundy  vs.  Ross, 395 

Munn  vs.  Commission  Company, 655 

Musick  vs.  Musick, 140 

Myers  vs.  Morse, 8%»,  486,  690 


2sr. 

Nairn  vs.  Prowse 685 

Nelson  vs.  Boynton,..  84,  141,  586*,  589,  591 

598,  623 

Nelson  vs.  Hardy,  240,  4.39,  555* 

Nelson  vs.  Scrle 01 

Neville  vs.  Wilkinson 676* 

Newell  vs.  Ingraham, 339,349 

New  England,  etc.,  Co.  vs.  Robinson,  .        75 

Nicholson  vs.  Sherman, 123 

Nixon  vs.  Van  Hise 395 

Noble  vs.  McClintock, 605 


18 


TABLE   OF   CASES. 


PAOE 

Noble  vs.  The  National  Discount  Co., .  524 

Noel  vs.  Hart 347 

North  vs.  Kobinson, 403* 

Norton  vs.  Huxley, I'i'S 

Norris  vs.  Spencer 259* 

Noyes  vs.  Blakeraan, 122 

Noyes  vs.  Humphreys,.. ..  251,  342*,  349,  627 


O. 

Oakley  vs.  Boorman, 161,  655 

O'Donnell  vs.  Smith, 161 

Ogden  vs.  Ogden, 690 

Okeson's  Appeal, 109*,  501 

Oldham  vs.  Allen 247* 

Olmstoaci  vs.  Greenly, 429,  549*,  550,  590 

Oliphant  vs.  Patterson,  405* 

Ontario  Bank  vs.  Worthington, . .  159,  263,  266 

Orrel  vs.  Ooppock, 493* 

Osborne  vs.  The   Farmers   Loan  and 

Trust  Co 636* 

Ostrander  vs.  Walter, 337 

Otway's  Case,  Sir  John 674 

Owings  vs.  Owings, 435 


Packer  vs.  Willson, 140,  591,  644* 

Page  vs.  Becker,  442* 

Page  vs.  Kendrick, 685 

Palethorpe  vs.  Lasher, 331 

Palmer  vs.  Neave, 677 

Paramour  vs.  Yardley, 123 

Parker  vs.  Serjeant, 679 

Parks  vs.  Brinckerhoff, 161 

Parsons  vs.  Walter, 214*,  218 

Pasley  vs.  Freeman, 172,  175,  177,  676 

Payne  vs.  Baldwin, 341*,  349 

Payne  vs.  Little '. . . .       113 

Payne  vs.  Mortimer, 684 

Payne  vs.  Smith, 124 

Peabody  vs.  Harvey, 507* 

Pearce  vs.  Blagrave, 218,  227*,  405,  477 

Pearson  vs.  Henry,   113,116*,  118 

Peck  vs.  Thompson, 457* 

Peckham  vs.  Faria 213*,  214,  254 

Peele  vs.  Northcote, 656 

Pennell  vs.  Pentz, 234*,  260* 

Perkins  vs.  Hinsdale, .' 245* 

Perkins  vs.  Hitchcock, 423 

Perkins  vs.  Littlefield, 404* 

Perloy  vs.  Spring, 234*,  2.35,  473 

Perry  vs.  Swasey, 413,  446* 

Peter  vs.  Compton, 694* 

Pettigrew  vs.  Pettigrew, 124 

Pfeifter  vs.  Adler 590,  635* 

Phillipps  vs.  Bateman, 496 

Phillips  vs.  Gray, 516* 

Philpot  vs.  Wallet, 689*,  690 

Pickering  vs.  Pickering, 124 

Pierce  vs.  Pass, 505 

Pierson  vs.  Dunlop, 264 

Pijrgott  vs.  Thomson, 410 

Pike  vs.  Brown, 169*,  400 

Pike  vs.  Irwin, 559* 

Pillans  vs.  Van  Mierop, 80,  81,  161,  264 

Plummer  vs.  Lyman, 595* 

Porter  vs.  Lan^horn, 240 

Post  vs.  .(Etna  Insurance  Co., 75 

Postlethwaite  vs.  Mounsey, 113 

Potts  vs.  Merrit, 729* 

Prather  vs.  Vineyard, 44  ) 

Pratt  vs.  Hudson  River  Railroad  Co., . .        73 

Pratt  vs.  Humphrey,..   84,  91,  92,104*,  105 

128,  165,  402* 

Preble  vs.  Baldwin, 400*,  417 

Prentice  vs.  Wilkinson, 206*,  580 

Prescott  vs.  Parker, 124 

Price  vs.  Combs, 240 


PAOB 

Price  vs.  Easton, 410 

Price  vs.  The  Earl  of  Torrington, 252 

Proctor  vs.  Jones, 76 

Prole  vs.  Soady, 745* 

Proprietors  of  Upper  Locks  vs.  Abbott, 

143,  240 
Prosser  vs.  Luqueer.  (See  Luqueer  vs. 
Prosser.) 

Puckett  vs.  Bates, 339,  627 

Pulsford  vs.  Richards, 746 


Q. 

Quin  vs.  Hanford 546* 

Quintard  vs.  De  Wolf, 366* 


R. 

Rains  vs.  Storry,  218,224*,  253 

Ramsdale  vs.  Horton, 369 

Rand  vs.  Mather 237,  353* 

Randall  vs.  Morgan, 717 

Randall  vs.  Sweet, 316* 

Rann  vs.  Hughes,  81*,  99,  120,  501 

Ransom  vs.  Keyes, 331 

Rapelye  vs.  Anderson 655 

Raymond  vs.  Pritchard, 439 

Read  vs.  Ladd, 240 

Read  vs.  Nash, . .  133,  193,  198*,  200,  201,  202 

203,  204,  205,  206,  207,  212,  301 

.302,  319,  567,  574,  591,  603 

Reade  vs.  Livingston, 722* 

Reader  vs.  Kingham, . .  392*,  394,  395,  404,  463 

Redding  vs.  Wflkes, 712 

Redman  vs.  Redman, . .  .• 677 

Reech  vs.  Kennegal, 99 

Reed  vs.  Holcomb 4S0*,  629* 

Rcxford  vs.  Brunei], 499* 

Reynolds  vs.  Carpenter, 637* 

Rhodes  vs.  Leeds, 240 

Rice  vs.  Barry, 331,  505*,  506 

Rice  vs.  Carter, 404 

Rice  vs.  Peet, 188 

Richardson  vs.  Richardson, 240 

Richardson  vs.  Williams,  , . . . .  276,  379*,  388 

Riddell  vs.  Sutton, 117 

Rider  vs.  Riley, 404 

Ridout  vs.  Bristow, 91 

Right  vs.  Price, 70 

Rifey  vs.  Riley 678,  703*,  706 

Roberts  vs.  Roberts, 677 

Robbins  vs.  Ayres, 441*,  442 

Robinson  vs.  Gilman, 148,  243*,  538* 

Robinson  vs.  Lane, 107,  111* 

Robson  vs. , 117 

Roche  vs.  Chaplin 300,  301,  312* 

Rogers  vs.  Collier, 597 

Rogers  V.  Kneeland, 240 

Rogers  vs.  Rogers, 139*,  141 

Rogers  vs.  Waters, 388,  500 

Rollison  vs.  Hope,    526 

Rothcry  vs.  Curry, 140 

Rowe  vs.  Whittier 141,  321,  421* 

Rowland  vs.  Rorke, 654 

Rucker  vs.  Cammeyer, 76 

Rupp  vs.  Blanchard, 525* 

Russell  vs.  Babcock, 141,  537*,  538 


S. 

SafTord  vs.  Stevens 437 

Sailly  vs.  Cleveland, 437 

St.  Albans  Bank  vs.  Dillon, 307* 

Sanborn  vs.  Merrill, 300,  301* 

Sanders  vs.  Clason, 441 

Satterthwaite  vs.  Emley, 698*,  722,  724 

Saunders  vs.  Cramer, 679,  683 

Saunders  vs.  Ferrill, 722 


TABLE   OF   CASES. 


19 


PAOB 

Saunders  VS.  Wakcfleld, 77,  84,  141 

Savage  vs.  Lane,  113 

Saxion  vs.  Landis,  321 

Sclu'iuerhorn  vs.  Vanderheyden, 437 

Scholcs  and  a.iother  vs.  Hampson  & 

Merriott 285*,  298 

Scott  vs.  Pilkington, 410 

Scolt  vs.  Scott 677 

Scott  vs.  Thomas 140,  188*,  545* 

Scuddervs.  Wade 240,  251,  252,  253 

Seaman  vs.  Hasbrouck, 412,  437* 

Seaman  vs.  Whitney, 434,  437 

Sears  vs.  Brink, SI 

Semple  vs.  Pink, 84 

Serle  vs.  Waterworth, 91 

Severs  vs.  Severs, 113 

Shaver  vs.  Adams, 539* 

Shaw  vs.  Jakenian, 717 

Shaw  vs.  Stine, 178,  181* 

Shear  vs.  Mallory, 437 

Sheen  vs.  Bump-^-tead, 174 

Sherwood  vs.  Stone, G()6* 

Shoemaker  vs.  King 418,  449*,  450,  552 

Shook  vs.  Van  Meter,  . .  404 

Siau  ads.  Piijgott 597 

Sibley  vs.  Vvniiams, 48 

Sidle  vs.  Anderson, 108* 

Sigourney  vs.  Wetherell, . .   509* 

Silsbee  vs.  Ingalls,    10.3* 

Simon  vs.  Motives, 78 

Simpson  vs.  Patten,  140,  542*,  54.3,  544,  540,  590 

Simpson  vs.  Penton, 217,  225*,  247 

Sinclair  vs.  Richardson,..  244,  255,  345*,  627 

Sinklear  v.  Emert 302* 

Skelton  vs.  Brewster, 3.34*,  590 

Skinner  vs.  Conant, 255,  261* 

Slater  vs.  Emerson 621 

Slingerland  vs.  Morse, 332*,  590 

Small  vs.  Schaef er, 436*,  628 

Smith  vs.  Berry, ...    526 

Smith  vs.  Bradley, 167* 

Smith  vs.  Cherrill 687* 

Smith  vs.  Coleman, 365 

Smith  vs.  Douglas, 74 

Smith  vs.  Fah, 194 

Smith  vs.  Finch,  654 

Smith  vs.  Greer,, 722 

Smith  vs.  Harris, 178*,  179 

Smith  vs.  Ives 140,591,644* 

Smith  vs.  Lewis, 411 

Smith  vs.  Mayo, 196* 

Smith  vs.  Sayward,  475* 

Smith  vs.  Stevens, 365 

Smyley  vs.  Head, 307* 

Soulevs.  Albee, 400*,  486 

Spalding  vs.  Spalding, 12-1 

Spann  vs.  Baltzell 161,  499*,  628 

Spaulding  vs.  Andrews, 161 

Spicer  vs.  Norton, 651  • 

Spooner  vs.  Dunn, 598* 

Sprat  vs  Agar, 410 

Sproat  vs.  Matthews 247* 

Spurgeon  vs.  Collier, 712,  713,  717*,  720 

Stanly  vs.  Hendricks,  369 

Stark  vs.  Ranev,  458* 

Starkcv  vs.  Mill,  410 

State  Bank,  &c.,  vs.  Mettler,  ....    433*,  448 

Stolibins  vs  Smith, 91, 102*,  103, 105,  128 

Steele  vs.  Towle 255 

Steman  vs    Harrison, 413 

Stephens  vs.  Pell 384* 

Stephens  vs.  Squire,  132,  198*,  201,  491*,  603 

Stern  vs.  Drinker 141,  335* 

Sternburg  vs.  Callanen, 385* 

Sterry  vs.  Arden 683,  684 

Stevens  vs.  Squire.    (See  Stephens  vs. 

Squire.) 

Stiles  vs.  Farrar 526 

Stilwell  vs.  Otis 5.V2 

Stocking  vs.  Sage, 170*,  402 

StCMie  vs.  Symmes 84,  377* 


PAQB 

Stone  vs.  Walker, 255,  288* 

Stony  vs.  Menzics, 3B9 

Stoudt  vs.  Hine 553*,  555 

Storer  vs.  Logan, 161 

Styron  vs.  Bell, 450* 

Strange,  Lord,  vs.  Smith, 682 

Strohecker  vs.  Cohen, 161 

Surdonie  vs.  Pinniger, 738* 

Swan  vs.  Nesmith 661*,  6ii3 

Swann  vs.  Phillips, 174 

Sweet  vs  Bradley, 651  * 

Sweetser  vs.  French 505 

Swift  vs.  Pierce 237*,  284 


T. 

Tapp  vs.  Lee, 174,  175* 

Tarbell  vs.  Stevens, 495* 

Tarr  vs.  Northey 219,  458* 

Tatlock  vs.  Harris, ....  361*,  365,  366,  408,  516 

518,  520 

Taylor  vs.  Bates 525 

Taylor  vs,  Drake, 21)9* 

Taylor  vs.  Higgins, 520 

Taylor  vs.  Hilary 265,  268* 

Taylor  vs.  Hillyer, 3£5,  504* 

Taylor  vs.  Mygatt, 122 

Taylor  vs.  Savage 474 

Tebbetts  vs.  Dowd,   509* 

Tempest  vs.  Fitzgerald, 77 

Templetons  vs.  Bascom, 91*,  140,  141 

387,  632* 

Tewksbnry  vs.  Hayes, 423* 

Therasson  vs.  McSpedon,  .   437 

Thomas  vs. , 410,  411 

Thomas  vs.  Cameron, 97* 

Thomas  vs.  Cook, 388,  460*,  462,  463 

469,  471,  475,  477,  47a 

Thomas  vs.  Dodge, 654 

Thomas  vs.  Thomas, 410 

Thomas  vs.  Welles, 395* 

Thomas  vs.  Williams, 141,  576*,  602 

Thompson  vs.  Blanchard, 161*,  16f. 

Thompson  vs.  Bond 182,  222*,  256 

Thompson  vs.  Gordon, 441 

Thompson  vs.  Harrison, 677 

Thompson  vs.  Perci val, 383 

Thompson  vs.  Perkins, 656 

Thruston  vs.  Thornton, 248* 

Thurston  vs.  James 654 

Thynne,  Lady,  vs.  Lord  Qlengall,...     .      713 

Thwaits  vs.  Curl, 256* 

Tibbetts  vs.  Flanders, 404,  417* 

Tibbitts  vs.  George 523 

Tilestonvs.  Nettleton, 2.34*,  2,35 

Tindalvs.  Touchberry 141,333*,  394* 

Titus  vs.  Scantling, 74 

Todd  vs.  Tobev 422* 

Tollit  vs.  Sherstone, 410 

Tomliuson  vs.  Gell, 141,  207,  579* 

im 

Tomlinson  vs.  Gill, 91.  93*,  95.  96 

200,  202,  387,  567* 

Tompkins  vs.  Smith, 321 

Towne  vs.  Grover 187* 

Townsley  vs.  Snmrall, 230* 

Treat  vs.'  Stanton 446 

Trewinian  vs.  Howell 99 

Trustees  of  First  Baptist  Church  vs. 

Brooklyn  Ins.  Co 75 

Trustees  of  Free  Schools,  Ac,  vs.  Flint,    138* 

388,  500 

Tupper  vs.  Cadwell,. 311 

Turnbull  vs.  Trout .         161 

Turner  vs.  Hubbell, 194,  202,  458* 

Turnley  vs.  McGregor, 174 

Turton"  vs.  Benson, 67" 

Turton  vs.  Burke, 240 

Tweddle  vs.  Atkinson,  Ex'r.,  etc., 411* 

Tyler  VB.  Stevens, 350* 


20 


TABLE   OF   CASES. 


TJ. 

PAGK 

Undcrhill  vs.  Gibson, 240 

Union,  etc.,  Ins.  Co.  vs.  Commercial 

etc.,  Ins.  Co., '^2 

United  States  Bank  vs.  Southard, 509* 

Union  vs.  Vail, l'^3 


"V. 

"Valentine  vs.  Valentine, •  •      J4 

Van  Slyck  vs.  Pulver, 335,  591 

Vcrplanck  vs.  Sterry, 684 

Vincent  vs.  Robinson, 450 


Wade  vs.  Tatton, 174 

Waggener  vs.  Bells, 240 

Waggoner  vs.  Gray, —      381 

Wagnon  vs.  Clay 503* 

Wainvvright  vs.  Straw  &  Cunningham,    286* 
288,  290,  291,  297,  298 

Wain  vs.  Warlters, 70,  71,  77 

Wait  vs.  Wait's  Executor, 426*,  427,  552 

Wakefield  vs.  Greenhood, 265*,  268 

Waldo  V.  Simonson, 631 

Walford  vs.  Gray, '''46* 

Walker  vs.  McDonald, 2.39* 

Walker  vs  Norton, 240,  280* 

Walker  vs.  Penniman, 377* 

Walker  vs.  Richards, 238*,  2.51,  263* 

Walker  vs.  Taylor, 566,  575,  577*,  578 

Wallace  vs.  Freeman, 441 

Wallace  vs.  Wortham, 291 

Walters  vs.  Morgan, '"'4 

Wanchford  vs.  Fotherly 681*   682,  713 

Wankf ord  vs.  Fotherley 681 

Wankford  vs.  Fotherby, 681 

Wansborough  vs.  Dyer, 117 

Ward  vs.  Evans 410 

Warden  vs.  Jones, 709,  712,  713,  718* 

Ware  vs.  Stephenson, '-:40 

Warnick  vs.  Grosholz, 240,  242,  341*,  627 

Warren  vs.  Barker, —      l'i'5 

Warren  vs.  Batchelder 408,  414,  424*,  521 

Warren  Academy  vs.  Starrett, 423 

Warren  vs.  Wheeler, .      526 

Watkins  vs.  Perkins 211*,  256 

Watson  vs.  Jacobs, 375* 

Watson  vs.  Randall, 141,  381*,  544,  591 

Waugh  vs.  Carver, 283 

Weed  vs.  Richardson, 505 

Weld  VB.  Nichols 399* 


PAOB 

Wells  vs.  Lain, 74 

Wells  V.  Mann, 453 

Wells  vs.  Prince, 175 

Westcott  vs.  Keeler 272* 

Westfall  vs.  Parsons, 398*,  486 

Westheimer  vs.  Peacock, 141,  541*,  558 

Westwick  vs.  Wyer, —      123 

Weyand  vs.  Crichfield, 240 

Wharton  vs.  Walker, .-. . .  .364*,  513*,  520,  521 

Wheatley  vs.  Strobe, 266 

Wheeler  vs.  Collier, 636 

Wheeler  vs.  Rice, 505 

Whelan  vs.  Whelan 684 

Whitchurch  vs.  Bevis 712 

Whitchurch  vs.  Whitchurch, 71 

Whitcomb  vs.  Kephart,  -    553* 

Whittle  vs.  Henning 114 

Wickham  vs.  Wickham 78,  668* 

Wilkinson  vs.  Lutwidge, 161 

Williams  v.  Corbet 240 

Williams  vs.  Everett, 411 

Williams  vs.  Lee, 123 

Williams  vs.  Leper, . .  147,  202,  319,  568*,  571 

572,  574,  575,  576,  584,  587,  .599 

601,  602,  603,  616,  668 

Williams  vs.  Williams,  730,  746,  7.50* 

Willis  vs.  Hobson 276* 

Willoughby,  in  the  matter  of, 691* 

Wilson  vs.  Coupland, 520*,  525 

Wilson  vs.  Lorg 109 

Wilson  vs.  Williams, —  ^ . . .      505 

Winckworth  vs.  Mills, 454* 

Windham  vs.  Chetwynd, 71 

Winne  vs.  Elderkin, 74 

Wolflf  vs.  Koppel 663*,  665,  666,  668 

Wollaston  vs.  Tribe,  687* 

Wood  vs.  Corcoran, 367*,  381 

Wood  vs.  Jackson, 685 

Wood  vs.  Midgley, 712 

Wood  vs.  Savage 722 

Wood  vs.  Wheelock, 651* 

Woods  vs.  Page, 74 

Worthington  vs.  Barlow, 117 

Wyman  vs.  Gray 84,  388,  500 

Wyman  vs.  Smith, 526 


Y. 

Young  vs.  Holmes, 128 


Zelhveger  vs.  Caffe, Wl 


STATUTES 


REIiATCNQ  TO 


THE  SUBJECT  OF  THIS  WORK. 


rrhe  original  statute  of  frauds  is  given  at  length  ;  but  the  subsequent  amendments, 
rfnd  the  extracts  from  statutes  enacted  in  the  United  States,  are  confined  to  such  as 
relate  to  the  matter  of  the  fourth  and  the  seventeenth  sections,  except  wliere  other 
matters  are  also  provided  for  in  one  section.  All  the  enactments  relative  to  verbal 
representations  respecting  the  credit,  &c.,  of  another,  are  given;  for  they  may  be 
regarded  as  amendments  to  the  fourth  section;  having  been  passed  in  consequence  of 
decisious  that  it  did  not  apply  to  such  representations.] 


"THE  STATUTE  OF  FRAUDS." 

29  Car.  II.     (A.  D.  1677.) 


B,..P„, «  CHAPTER  III. 

C.  II.  p.  1.  no.  i. 

An  Act  for  prevention  of  Frauds  and  Perjuryes. 

For  prevention  of  many  fraudulent  Practices  which  are 
commonly  endeavoured  to  be  upheld  by  Perjury  and 
Subornation  of  Perjury  Bee  it  enacted  by  the  Kings  most 
excellent  Majestie  by  and  with  the  advice  and  consent  of 
the  Lords  Spirituall  and  Temporall  arid  the  Commons  in 
this  present  Parlyament  assembled  and  by  the  authoritie 
of  the  same  That  from  and  after  the  fower  and  twentyeth 
day  of  June  which  shall  be  in  the  yeare  of  our  Lord  one 
thousand  six  hundi-ed  seaventy  and  seaven  All  Leases 
Estates  Interests  of  Freehold  or  Termes  of  yeares  or  any 
uncertaine  'Interest  of  in  to  or  out  of  any  Messuages 
Mannours  Lands  Tenements  or  Hereditaments  made  or 
created  by  Livery  and  Seisin  o'nely  or  by  Parole  and  not 
putt  in  Writeing  and  signed  by  the  parties  soe  makein.u' 


S2  The  Statute  of  Fkauds. 

or  creating  the  same  or  their  Agents  thereunto  lawfully 
authorized  by  Writeing,  shall  have  the  force  and  effect  of 
Leases  or  Estates  at  Will  onely  and  shall  not  either  in 
Law  or  Equity  be  deemed  or  taken  to  have  any  other  or 
greater  force  or  effect,  Any  consideration  for  makeing 
any  such  Parole  Leases  or  Estates  or  any  former  Law  or 
Usage  to  the  contrary  notwithstanding. 

TT  Except  neverthelesse  all  Leases  not  exceeding 

,.^  ^  n  -|  the  terme  of  three  yeares  from  the  makeing 
^  '  '-^  thereof  whereupon  the  Rent  reserved  to  the 
Landlord  dureing  such  terme  shall  amount  unto  two 
third  parts  at  the  least  of  the  full  improved  value  of  the 
thing  demised. 

T  TT  And  moreover  That  noe  Leases  Estates  or  Liter- 
P^  ^  ^  ests  either  of  Freehold  or  Terms  of  yeares  or  any 
uncertaine  Interest  not  being  Copyhold  or  Cus- 
tomary Interest  of  in  to  or  out  of  any  Messuages  Mannours 
Lands  Tenements  or  Hereditaments  shall  at  any  time  after 
the  said  fower  and  twentyeth  day  of  June  be  assigned 
granted  or  surrendred  unlesse  it  be  by  Deed  or  Note  in 
Writeing  signed,  by  the  party  soe  assigning  granting  or 
surrendring  the  same  or  their  Agents  thereunto  lawfully 
authorized  by  writeing  or  by  act  and  operation  of  Law, 

T^  And  bee  it  further  enacted  by  the  authoritie 

ro       ,  T     aforesaid  That  from  and  after  the  said  fower  and 

OGC.  T. 

twentyeth  day  of  June  noe  Action  shall  be 
brought  whereby  to  charge  any  Executor  or  Administrator 
upon  any  speciall  promise  to  answere  damages  out  of  his 
owne  Estate  [2]  or  whereby  to  charge  the  Defendant  upon 
any  speciall  promise  to  answere  for  the  debt  default  or 
miscarriages  of  another  person  [3]  or  to  charge  any  person 
upon  any  agreement  made  upon  consideration  of  Marriage 
[4]  or  upon  any  Contract  or  Sale  of  Lands  Tenements  or 
Hereditaments  or  any  Interest  in  or  concerning  them  [5] 
or  upon  any  Agreement  that  is  not  to  be  performed  within 
the  space  of  one  yeare  from  the  makeing  thereof  [6]  unlesse 


The  Statute  of  Fkauds.  23 

the  Agreement  upon  wliicli  sncli  Action  sliall  bo  brought 
or  some  Memonindum  or  IM  ote  thereof  shall  be  in  Write- 
ing  and  signed  hy  the  partie  to  be  charged  therewith  or 
some  other  person  thereunto  by  him  lawfully  authorized. 

XT'  AxD  bee  it  further  enacted  by  the  authoritie 

ro  K  -,  aforesaid  That  from  and  after  the  said  fower  and 
twentyeth  day  of  June  all  Devises  and  Bequests 
of  any  Lands  or  Tenements  deviseable  either  by  force  of 
the  Statute  of  Wills  or  by  this  Statute  or  by  force  of  the 
Custome  of  Kent  or  the  Custome  of  any  Burrough  or  any 
other  perticular  Custome  shall  be  in  Writeing  and  signed 
by  the  partie  soe  deviseing  the  same  or  by  some  other 
person  in  his  presence  and  by  his  expresse  directions  and 
shall  be  attested  and  subscribed  in  the  presence  of  the 
said  Devisor  by  three  or  fower  credible  Witnesses  or  else 
they  shall  be  utterly  void  and  of  none  effect. 

VT  A]srD  moreover  hoe  Devise  in  Writeing  of  Lands 

j-^  P  -,  Tenements  or  Hereditaments  nor  any  Clause 
thereof  shall  at  any  time  after  the  said  fower  and 
twentyeth  day  of  June  be  revocable  otherwise  than  by 
some  other  Will  or  Coddicill  in  Writeing  or  other  Write- 
ing declareing  the  same  or  by  burning  cancelling  teareing 
or  obliterating  the  same  by  the  Testator  himselfe  or  in  his 
presence  and  by  his  directions  and  consent  [2]  but  all 
Devises  and  Bequests  of  Lands  and  Tenements  shall 
remaine  and  continue  in  force  until  the  same  be  burnt 
cancelled  torne  or  obliterated  by  the  Testator  or  his  direc- 
tions in  manner  aforesaid  or  unlesse  the  same  be  altered 
by  some  other  AYill  or  Codicill  in  Writeing  or  other 
Writeing  of  the  Devisor  signed  in  the  presence  of  three  or 
fower  Witnesses  declareing  the  same,  Any  former  Law 
or  Usage  to  the  contrary  notwithstanding. 

VTT  And  bee  it  further  enacted  by  the  authoritie 
ro       -  -1     aforesaid  That  from  and  after  the  said  fower  and 

I  OGC.    i  .\ 

twentyeth  day  of  June  Declarations  or  Creations 
of  Trusts  or  Conlidences  of  any  Lands  Tenements  or 


24  The  Statute  of  Fkauds. 

Hereditaments  shall  be  manifested  and  proved  by  some 
Writeing  signed  by  the  partie  who  is  by  Law  enabled  to 
declare  such  Trust  or  by  his  last  Will  in  Writeing  or  else 
they  shall  be  utterly  void  and  of  none  effect. 

'Y'TTT  Provided  alwayes  That  where  any  Conveyance 
i-<^  J.  ^  shall  bee  made  of  any  Lands  or  Tenements  by 
^  '  '■'  which  a  Trust  or  Confidence  shall  or  may  arise 
or  result  by  the  Implication  or  Construction  of  Law  or 
bee  transferred  or  extinguished  by  an  act  or  operation  of 
Law  then  and  in  every  such  Case  such  Trust  or  Confidence 
shall  be  of  the  like  force  and  effect  as  the  same  would 
have  beene  if  this  Statute  had  not  beene  made.  Anything 
hereinbefore  contained  to  the  contrary  notwithstanding. 

TV  Akd  bee  it  further  enacted  That  all  Grants  and 

P^  Q  ^  Assignments  of  any  Trust  or  Confidence  shall 
likewise  be  in  Writeing  signed  by  the  party 
granting  or  assigning  the  same  [or^]  by  such  last  Will  or 
Devise  or  else  shall  likewise  be  utterly  void  and  of  none 
effect. 

^  Ats^d  bee  it  further 'enacted  by  the  authoritie 

re  w  ^  -1  aforesaid  That  from  and  after  the  said  fower  and 
I  bee.  10. J 

twentyeth  day  of  June  it  shall  and  may  be  law- 
full  for  every  Sheriffe  or  other  Officer  to  whome  any  Writt 
or  Precept  is  or  shall  be  directed  at  the  Suite  of  any  person 
or  persons  of  for  and  upon  any  Judgement  Statute  or 
Recognizance  hereafter  to  be  made  or  had,  to  doe  make  and 
deliver  Execution  unto  the  partie  in  that  behalfe  sueing 
of  all  such  Lands  Tenements  Rectories  Tythes  Rents  and 
Hereditaments  as  any  other  person  or  persons  be  in  any 
manner  of  wise  seised  or  possessed  [or  hereafter  shall  be 
seised  or  possessed^]  in  Trust  for  him  against  whome  Exe- 
cution is  soe  sued  like  as  the  Sheriffe  or  other  Officer  might 
or  ought  to  have  done  if  the  said  partie  against  whome 
Execution  hereafter  shall  be  soe  sued  had  beene  seised  of 


interlined  on  the  Roll. 


The  Statute  of  Frauds.  25 

such  Lands  Tenements  Rectories  Tythes  Rents  or  other 
Hereditaments  of  such  Estate  as  they  be  seised  of  in  trust 
for  liim  at  tlie  time  of  the  said  Execution  sued.  [2J  Which 
Lands  Tenements  Rectories  Tythes  Rents  and  other  Here- 
ditaments by  force  and  vertue  of  such  Execution  shall 
accordingly  be  held  and  enjoyed  freed  and  discharged 
from  all  Incumbrances  of  such  person  or  persons  as  shall 
be  soe  seised  or  possessed  in  Trust  for  the  person  against 
whome  such  execution  shall  be  sued.  [3]  And  if  any 
Cestuy  que  Trust  hereafter  shall  dye  leaveing  a  Trust  in 
Fee  simple  to  descend  to  his  Heu'e,  there,  and  in  every  such 
case  such  Trust  shall  be  deemed  and  taken  and  is  hereby 
declared  to  be  Assetts  by  descent  and .  the  Heir  shall  be 
lyable  to  and  chargeable  with  the  Obligation  of  his 
Auncestors  for  and  by  reason  such  Assetts  as  fully  and 
amply  as  he  might  or  ought  to  have  beene  if  the  Estate  in 
Law  had  descended  to  him  in  possession  in  like  manner 
as  the  Trust  descended,  Any  Law  Custome  or  Usage  to 
the  contrary  in  any  wise  notwithstanding. 

V  J  Peovided  alwayes  That  noe  Heire  that  shall 
P^,  ^  ^  -,  become  chargeable  by  reason  of  any  Estate  or 
^      '  Trust  made  Assetts  in  his  hands  by  this  Law  shall 

by  reason  of  any  kinde  of  Plea  or  confession  of  the 
Action  or  suffering  Judgement  by  Nient  dedire  or  any 
other  matter  bee  chargeable  to  pay  the  Condemnation  out 
of  his  owne  Estate  [2]  but  Execution  shall  be  sued  of  the 
whole  Estate  soe  made  Assetts  in  his  hands  by  descent  in 
whose  hands  soever  it  shall  come  after  the  Writt  pur- 
chased in  the  same  manner  as  it  is  to  be  at  and  by  the 
Common  Law  where  the  Heire  at  Law  pleading  a  true 
Plea  Judgement  is  prayed  against  him  thereuj^on.  Any 
thing  in  this  present  Act  contained  to  the  contrary  not- 
withstanding. 

XII      ^^^  ^^^  ^^^®  amendment  of  the  law  in  the  par- 

p;^      ^  „  -.  ticulars  following  [2]  Bee  it  further  enacted  by 

the  authoritie  aforesaid  That  from  henceforth 

any  Estate  per  auter  vie  shall  be  deviseable  by  a  Will  in 

3 


26  The  Statute  of  Frauds. 

writeing  signed  by  the  party  soe  deviseing  the  same  or  by 
some  other  person  in  his  presence  and  by  his  expresse 
directions  attested  and  subscribed  in  the  presence  of  the 
Devisor  by  three  or  more  Witnesses,  [3]  and  if  noe  such 
Devise  thereof  be  made  the  same  shall  be  chargeable  in 
the  hands  of  the  Heire  if  it  shall  come  to  him  by  reason  of 
a  speciall  Occupancy  as  Assetts  by  descent  as  in  case 
of  Lands  in  Fee  simple  [4]  And  in  case  there  be  noe 
speciall  Occupant  thereof  it  shall  goe  to  the  Executors  or 
Administrators  of  the  partie  that  had  the  Estate  thereof 
by  vertue  of  the  Grant  and  shall  be  Assetts  in  their  hands. 

XIII  ^^^  whereas  it  hath  beene  found  mischievous 
l-^,  ^  .  ^  -,  that  Judgements  in  the  Kings  Courts  at  West- 
minster  doe  many  times  relate  to  the  first  day 
of  the  Terme  whereof  they  are  entred  or  to  the  day 
of  the  Returne  of  the  Originall  or  fileing  the  Baile  and 
binde  the  Defendants  Lands  from  that  time  although 
in  trueth  they  were  acknowledged  or  suffered  and 
signed  in  the  Vacation  time  after  the  said  Terme  where- 
by many  times  Purchasers  finde    themselves  agrieved 

re  t  <  n  Bee  it  enacted  by  the  authoritie  aforesaid  That 
I  oec.  14.J  *' 

from  and  after  the  said  foure  and  twenty eth  day 
of  June  any  Judge  or  Officer  of  any  of  his  Majestyes  Courts 
of  Westminster  that  shall  signe  any  Judgements  shall  at 
the  signeing  of  the  same  without  Fee  for  doeing  the  same 
sett  downe  the  day  of  the  moneth  and  yeare  of  his  soe 
doeing  upon  the  Paper  Booke  Dockett  or  Record  which 
he  shall  signe  which  day  of  the  moneth  and  yeare  shall 
be  alsoe  entred  upon  the  Margent  of  the  Roll  of  the 
Record  where  the  said  Judgement  shall  be  entred. 

V  J"^  And  bee  it  enacted  That  such  Judgements  as 
ra  -1 K  -|  against  Purchasers  bona  fide  for  valueable 
consideration  of  Lands  Tenements  or  Heredita- 
ments to  be  charged  thereby  shall  in  consideration  of  Law 
be  Judgements  onely  from  such  time  as  they  shall  be  soe 
signed  and  shall  not  relate  to  the  first  day  of  the  Terme 
whereof  they  are  entred  or  the  day  of  the  Returne  of  the 


The  Statute  of  Frauds.  27 

Originall  or  fileing  tlie  Baile  Any  Law,  Usage  or  Course 
of  any  Court  to  the  contrary  notwithstanding. 

"VV  AxD  bee  it  further  enacted  by  the  authoritie 
|.(^  ^  -.  aforesaid  That  from  and  after  tlie  said  fower  and 
^  *  '-^  twentyeth  day  of  June  noeWritt  of  Fieri  facias 
or  other  Writt  of  Execution  shall  binde  the  Property  of 
the  Goods  against  whome  such  Writt  of  Execution  is  sued 
forth  but  from  the  time  that  such  Writt  shall  be  delivered 
to  the  Sheriffe  Under  Sheriffe  or  Coroners  to  be  executed, 
And  for  the  better  manifestation  of  the  said  time  the 
Sheriffe  Under- Sheriffe  and  Coroners  their  Deputyes  and 
Agents  shall  upon  the  receipt  of  any  such  Writt  (without 
Fee  for  doeing  the  same)  endorse  upon  the  backe  thereof 
the  day  of  the  moneth  [or^]  yeare  whereon  he  or  they 
received  the  same. 

V'^TT  And  bee  it  further  enacted  by  the  authority 
re      -,  ^-  -,     aforesaid  That  from  and  after  the  said  fower 

OGC    1  i 

'  •  and  twentyeth  day  of  June  noo  Contract  for 
the  Sale  of  any  Goods  Wares  or  Merchandises  for  the 
price  of  ten  pounds  Sterling  or  upwards  shall  be  allowed 
to  be  good  except  the  Buyer  shall  accept  part  of  the 
Goods  soe  sold  and  actually  receive  the  same  or  give 
something  in  earnest  to  bind  the  bargaine  or  in  part  of 
payment,  or  that  some  Note  or  Memorandum  in  writeing 
of  the  said  bargaine  be  made  and  signed  by  the  partyes 
to  be  charged  by  such  Contract  or  their  Agents  thereunto 
lawfully  authorized. 

■VTrTT    And  bee  it  further  enacted  by  the  authority 
l-^       .    -,  aforesaid    That  the  day  of  the  moneth  ai^d 
'  yeare  of  the  Enrollment  of  the  Recognizances 

shall  be  sett  downe  in  the  Margent  of  the  Roll  where  the 
said  Recognizances  are  enrolled,  and  that  from  and  after 
the  said  fower  and  twentyeth  day  of  June  noe  Recog- 
nizance shall  binde  any  Lands  Tenements  or  Ileredita- 

>  "iind"  O.  (omitted.) 


28  The  Statute  of  Frauds. 

ments  in  the  liands  of  any  Purcliasor  bona  fide  and  for 
valueable  consideration  but  from  the  time  of  such  Enroll- 
ment, Any  Law  Usage  or  Course  of  any  Court  to  the 
contrary  in  any  wise  notwithstanding. 

VXTTTT  Akd  for  prevention  of  fraudulent  Practices 
*  in  setting  up  Nuncupative  Wills  which 
^  ^^'  ■-'  have  beene  the  occasion  of  much  Perjury 
[2]  Bee  it  enacted  by  the  authority  aforesaid  That  from 
and  after  the  aforesaid  fower  and  twentyeth  day  of  June 
noe  Nuncupative  Will  shall  be  good  where  the  Estate 
thereby  bequeathed  shall  exceede  the  value  of  thirty 
pounds  that  is  not  proved  by  the  Oathes  of  three  Wit- 
nesses (at  the  least)  that  were  present  at  the  makeing 
thereof,  [3]  nor  unlesse  it  be  proved  that  the  Testator  at 
the  time  of  pronounceing  the  same  did  bid  the  persons 
present  or  some  of  them  beare  wittnesse  that  such  was 
his  Will  or  to  that  effect,  [4]  nor  unlesse  such  Nuncupa- 
tive Will  were  made  in  the  time  of  the  last  sicknesse  of 
the  deceased  and  in  the  House  of  his  or  her  habitation  or 
dwelling  or  where  he  or  she  hath  beene  resident  for  the 
space  of  ten  dayes  or  more  next  before  the  makeing  of 
such  Will  except  where  such  person  was  surprized  or 
taken  sick  being  from  his  owne  home  and  dyed  before  he 
returned  to  the  place  of  his  or  her  dwelling. 

"V  JV  Akd  bee  it  further  enacted  That  after  six 
ra  on  t  mouetlies  passed  after  the  speaking  of  the 
pretended  Testamentary  words  noe  Testimony 
shall  be  received  to  prove  any  Will  Nuncupative  except 
the  said  Testimony  or  the  substance  thereof  were  com- 
mitted to  writeing  within  six  dayes  after  the  makeing  of 
the  said  Will. 

^^^  And  bee  it  further  enacted  That  noe  Letters 
rs  91  1  Testamentary  or  Probate  of  any  Nuncupative 
Will  shall  passe  the  Seale  of  any  Court  till 
fowerteene  dayes  at  the  least  after  the  decease  of  the 
Testator  be  fully  expired,  [2]  Nor  shall  any  Nuncupative 


TiiK  Statute  of  Fit.vuDS.  29 

Will  be  at  any  time  received  to  be  proved  unlesse  Pro- 
cesse  have  first  issued  to  call  in  tlie  Widow  or  next  of 
kindred  to  tlie  deceased  to  the  end  they  may  contest  the 
same  if  they  please. 

"V  V  J  And  bee  it  further  enacted  That  noe  Will  in 
v^^riteing  concerning  any  Goods  or  Chattells  or 
L  ec.  .J  Personal  1  'Estate  shall  be  repealed  nor  shall 
any  Clause  Devise  or  Bequest  therein  be  altered  or 
changed  by  any  Words  or  Will  by  word  of  mouth  onely 
except  the  same  be  in  the  life  of  the  Testator  committed 
to  writeing  and  after  the  writeing  thereof  read  unto  the 
Testator  and  allowed  by  him  and  proved  to  be  soe  done 
by  three  Wittnesses  at  the  least. 

VVTT  Provided  al waves  That  notwithstanding  this 
Act  any  Soldier  being  in  actuall  Military 
L  ec.  .J  Sepyjce  or  any  Marriner  or  Seaman  being  at 
Sea  may  dispose  of  his  Moveables,  Wages  and  Personall 
Estate  as  he  or  they  might  have  done  before  the  makeing 
of  this  Act. 

VVJTT    And  it  is  hereby  declared  That  nothing  in 

*  this  Act  shall  extend  to  alter  or  change  the 

LSec.  24.J     j^j.-g^.(,^iQj^  oj.  j^igi^i-  of  Probate  of  Wills 

concerning  Personall  Estates  but  that  the  Prerogative 
Court  of  the  Archbishop  of  Canterbury  and  other 
Ecclesiasticall  Courts  and  other  Courts  haveing  Right  to 
the  Probate  of  such  Wills  shall  retaine  the  same  Right 
and  Power  as  they  had  before  in  every  respect  subject 
neverthelesse  to  the  Rules  and  Directions  of  this  Act. 

"V VJY'  Atid  for  the  explaining  one  Act  of  this 
P^^sent  Parlyament  intituled  An  Act  for  the 
[Sec.  25.J  ^^^^^  eetleing  of  Intestates  Estates  Bee  it 
declared  by  the  authority  aforesaid  That  neither  the  said 
Act  nor  any  thing  therein  contained  shall  be  construed  to 
extend  to  the  Estates  of  Feme-Coverts  that  shall  dye  Intes- 
tate,  but  that  their  Husbands  may  demand  and  have 


30  The  Statute  of  Frauds. 

Administration  of  their  Rights  Credits  and  other  Personall 
Estates  and  recover  and  enjoy  the  same  as  they  might 
have  done  before  the  makeing  of  the  said  Act.^ 

'  The  foregoing  is  an  exact  transcript  of  the  text  of  the  statute,  with  the 
orthography  an(f  punctuation  of  the  original  preserved,  as  contained  on 
pages  839,  840,  841  and  842  of  the  fifth  volume  of  the  "  Statutes  of  the 
Eealm,"  foUo,  pubhshed  in  London  in  the  year  1819,  "printed  by  command 
of  His  Majesty,  King  George  the  Third,  in  pursuance  of  an  address  of  the 
House  of  Commons  of  Great  Britain."  In  the  printed  vokime  the  Roman 
numerals,  designating  the  sections,  are  contained  in  the  outer  margin,  and 
under  each  is  a  short  sentence,  containing  an  abstract  of  the  contents  of 
each  section  so  designated.  We  have  omitted  these  sentences,  and  added  in 
brackets  the  numbers  of  the  sections,  as  we  find  them  in  the  unauthorized 
editions  of  the  English  statutes,  and  in  the  copies  of  the  statute -of  frauds, 
contained  in  various  text-books;  and  we  have  also  designated  the  dififerent 
clauses  of  several  sections  by  Arabic  numerals  in  brackets,  to  make  them 
correspond  with  similar  divisions  in  those  editions.  In  all  these  respects  the 
unauthorized  editions  of  the  statute  are  exactly  alike ;  and  the  dififerent 
sections  are  cited  according  to  this  numeration  in  the  text-books  and 
reported  cases ;  but  it  will  be  noticed  that  the  thirteenth  section,  according 
to  the  official  copy,  is  divided  by  the  unauthorized  publications  into  two 
sections,  in  9onsequence  of  which  the  numbers  of  the  subsequent  sections 
do  not  correspond  with  those  of  the  oflficial  edition  ;  the  seventeenth  sec- 
tion, of  which  we  shall  treat  largely  in  the  second  volume,  being  in  reality 
the  sixteenth  of  the  official  copy.  Doubtless  this  distribution  of  the  statute 
into  sections  was  made  in  some  copy  published  shortly  after  it  was  passed, 
which  has  been  followed  ever  since;  but  we  are  not  able  to  trace  its 
origin.  The  cases  decided  soon  after  the  passage  of  the  statute  of  frauds, 
generally  refer  to  its  clauses  by  stating  their  substance,  without  reference  to 
the  numbers  of  the  sections;  and  the  earliest  case  which  we  have  noticed 
where  any  section  subsequent  to  the  twelfth  is  referred  to  by  its  number, 
is  Colt  vs.  Nettervill,  2  Peere  Williams,  305,  A.  D.  1725,  which  speaks  of 
the  seventeenth  section,  meaning  thereby  the  one  known  to  us  by  that 
number.  The  South  Carolina  provincial  statute  of  1712,  mentioned 
hereafter  as  the  enactment  whereby  the  statute  of  frauds  is  now  in  force 
in  that  State,  adopts  ''the  several  statutes,  and  the  several  paragraphs, 
and  sections  or  numbers  of  the  paragrapns  of  the  several  statutes  of  the 
Kingdom  of  England,"  thereafter  contained  in  the  enactment,  "as  the 
same  are  distinguished  and  divided  into  paragraphs  and  sections  or  numbers, 
by  Joseph  Keble,  of  Gray's  Inn,  Esq.,  in  his  statutes  at  large  from  Magna 
Charta  to  the  end  of  the  reign  of  King  Charles  the  2d,"  and  the  statute  of 
29  Charles  2d,  chapter  3,  is  inserted  at  length,  with  the  sections  numbered 
and  divided  into  paragraphs,  as  is  now  customary.  It  is  quits  probable  that 
the  present  numeration  derives  its  origin  from  that  book. 


TnK  Statute  of  Frauds.  31 

EXTRACTS   FROM 

"LOUD  TENTERDEN'S  ACT." 

[9  Geo.  4,  char-  1 1.     May  9,  18^8.] 


"  An  Act  for  rendering  a  written  memorandum 
necessary  to  the  validity  of  certain  promises 
and  engagements." 

Sec.  6.  That  no  action  shall  be  brought  whereby  to 
charge  any  person  upon  or  by  reason  of  any  representa- 
tion or  assurance  made  or  given  concerning  or  relating  to 
the  character,  conduct,  credit,  ability,  trade  or  dealings 
of  any  other  person,  to  the  intent  or  purpose  that  such 
other  person  may  obtain  credit,  money,  or  goods  upon,^ 
unless  such  representation  or  assurance  be  made  in 
writing,  signed  by  the  party  to  be  charged  therewith. 

Sec.  7.  And  whereas  by  an  Act  passed  in  England  in 
the  twenty-ninth  year  of  the  reign  of  king  Charles  the 
second,  intitul'ed  "An  Act  for  the  Prevention  of  Frauds 
and  Perjuries,"  it  is  among  other  things  enacted,  that 
from  and  after  the  24th  day  of  June,  1677,  no  contract  for 
the  sale  of  any  goods,  wares,  and  merchandises,  for  the 
price  of  ten  pounds  sterling  or  upwards,  shall  be  allowed 
to  be  good,  except  the  buyer  shall  accej^t  part  of  the 
goods  so  sold  and  actually  receive  the  same,  or  give 
something  in  earnest  to  bind  the  bargain,  or  in  part  of 
payment,  or  that  some  note  or  memorandum  in  writing 
of  the  said  l^argain  be  made  and  signed  by  the  parties  to 
be  charged  by  such  contract,  or  their  agents  thereunto 
lawfully  authorised  ;  And  whereas  a  similar  enactment  is 
contained  in  an  Act  passed  in  Ireland  in  the  seventh  year 

'  So  on  the  original  roll  of  parliament :  probably  a  mistake  for  '  tberenpon.'  See  the 
observations  of  Parko  B.  and  Lord  Abiuger,  C.  B  ,  Lyde  vs.  Barnard,  1  M.  &.  W.  115. 
Note  to  Chilti/s  Statutes. 


32  The  Statute  of  Frauds. 

of  the  reign  of  king  William  the  third :  And  whereas  it 
has  been  held,  that  the  said  recited  enactments  do  not 
extend  to  certain  executory  contracts  for  the  sale  of  goods, 
which  nevertheless  are  within  the  mischief  thereby 
intended  to  be  remedied;  and  it  is  expedient  to  extend 
the  said  enactments  to  such  executory  contracts ;  Be  it 
ENACTED,  That  the  said  enactment  shall  extend  to  all  con- 
tracts for  the  sale  of  goods  of  the  value  of  ten  pounds 
sterling  and  u^Dwards,  notwithstanding  the  goods  may  be 
intended  to  be  delivered  at  some  future  time,  or  may  not 
at  the  time  of  such  contract  be  actually  made,  procured, 
or  provided,  or  fit  or  ready  for  delivery,  or  some  act  may 
be  requisite  for  the  making  or  completing  thereof,  or  ren- 
dering the  same  fit  for  delivery. 

Sec.  8.  That  no  memorandum  or  other  writing  made 
necessary  by  tliis  Act  shall  be  deemed  to  be  an  agreement 
within  the  meaning  of  any  statute  relating  to  the  duties 
of  stamps. 

Sec.  9.  That  nothing  in  this  Act  contained  shall  extend 
to  Scotland- 


The  Statute  of  Frauds.  33 


EXTRACTS    FROM 

"THE  MERCANTILE  LAW  AMENDMENT  ACT." 

[19  and  20  Vict.,  chap.  97.    July  29,  1856.] 


''An  Act  to  amend  the  Laws  of  England  and 
Ireland  affecting  Trade  and  Commerce/^ 

Sec.  3.  No  special  promise  to  be  made  by  aiiy  person 
after  the  passing  of  tliis  Act  to  answer  for  the  debt, 
default,  or  miscarriage  of  another  person,  being  in  writing, 
and  signed  by  the  party  to  be  charged  therewith,  or  some 
other  person  by  him  thereunto  lawfully  authorised,  shall 
be  deemed  invalid  to  support  an  action,  suit,  or  otlier 
proceeding,  to  charge  the  person  by  whom  such  promise 
shall  have  been  made,  by  reason  only  that  the  considera- 
tion for  such  promise  does  not  appear  in  writing,  or  by 
necessary  inference  from  a  written  document. 

Sec.  4.  No  promise  to  answer  for  the  debt,  default  or 
miscarriage  of  another,  made  to  a  firm  consisting  of  two 
or  more  persons,  or  to  a  single  person  trading  under  the 
name  of  a  firm,  and  no  promise  to  answer  for  the  debt, 
default  or  miscarriage  of  a  firm  consisting  of  two  or  more 
persons,  or  of  a  single  person  trading  under  the  name  of 
•  a  firm,  shall  be  binding  on  the  person  making  such  prom- 
ise in  respect  of  anything  done  or  omitted  to  be  done  after 
a  change  shall  have  taken  place  in  any  one  or  more  of  the 
persons  constituting  the  firm,  or  in  the  person  trading 
under  the  name  of  a  firm,  unless  the  intention  of  the  par- 
ties, that  such  promise  shall  continue  to  be  binding  not- 
withstanding such  change,  shall  appear  either  by  express 
stipulation  or  by  necessary  implication  from  the  nature 
of  the  firm  or  otherwise. 

Sec.  13.  In  reference  to  the  provisions  of  the  Acts  of  the 
ninth  year  of  the  reign  of  King  George  the  fourth,  chapter 
5 


84  The  Statute  of  Frauds. 

fourteen,  sections  one  and  eight,  and  tlie  sixteenth  and 
seventeenth  years  of  the  reign  of  her  present  majesty, 
chapter  one  hundred  and  thirteen,  sections  twenty-four 
and  twenty-seven,  an  acknowledgment  or  promise  made 
or  contained  by  or  in  a  writing  signed  by  an  agent  of  the 
party  chargeable  thereby,  duly  authorised  to  make  such 
acknowledgment  or  promise,  shall  have  the  same  effect  as 
if  such  writing  had  been  signed  by  such  party  himself. 


Tin:  Statute  of  Feauds.  35 


AMERICAN  STATUTES. 


ALABAMA. 

Revised  Code  of  1867.    Part  2,  Title  3,  chapter  4. 

Sec.  1862.  In  the  following  cases,  every  agreement  is  void,  unless 
such  agreement,  or  some  note  or  memorandum  thereof,  expressing 
the  consideration,  is  in  writing,  and  subscribed  by  the  party  to  be 
charged  therewith  or  some  other  person  by  him  thereunto  lawfully 
authorized  in  writing. 

1.  Every  agreement,  which,  by  its  terms,  is  not  to  be  performed 
within  one  year  from  the  making  thereof. 

2.  Every  special  promise,  by  an  executor  or  administrator,  to 
answer  damages  out  of  his  own  estate. 

3.  Every  special  promise  to  answer  for  the  debt,  default,  or 
miscarriage  of  another. 

4.  Every  agreement,  promise,  or  undertaking,  made  upon  con- 
sideration of  marriage,  except  mutual  promises  to  marry. 

5.  [Related  to  agreements  for  the  sale  of  goods,  &c.^  exceeding 
1200 ;  repealed  Nov.  7,  1862.] 

6.  Every  contract  for  the  sale  of  lands,  tenements,  or  heredita- 
ments, or  of  any  interest  therein,  except  leases  for  a  term  not 
longer  than  one  year,  unless  the  purchase  money,  or  a  portion 
thereof,  be  paid,  and  the  purchaser  be  put  into  possession  of  the 
land  by  the  seller. 

Sec.  1863.  When  goods,  or  things  in  action  are  sold,  or  lands, 
tenements,  or  hereditaments  sold  or  leased  at  public  auction,  and 
the  auctioneer,  his  clerk,  or  agent,  makes  a  memorandum  of  the 
property,  and  price  thereof  at  which  it  is  sold  or  leased,  the  terms 
of  sale,  the  name  of  the  purchaser  or  lessee,  and  the  name  of  the 
person  on  whose  account  the  sale  or  lease  is  made,  such  memo- 
randum is  a  note  of  the  contract  within  the  meaning  of  the  pre- 
ceding section. 

Sec.  1864.  No  action  can  be  maintained  to  charge  any  person, 
by  reason  of  any  representation  or  assurance  made,  concerning 


36  The  Statute  of  Feauds. 

the  character,  conduct,  ability,  trade  or  dealings  of  any  other 
person,  when  such  action  is  brought  by  the  person  to  whom  such 
representation  or  assurance  was  made,  unless  the  same  is  in 
writing,  signed  by  the  party  sought  to  be  charged. 

ARKANSAS. 

Gould's  Digest,  1858.    Chapter  74. 

Sec.  1.  No  action  shall  be  brought,  first,  to  charge  any  executor 
or  administrator,  upon,  any  special  promise,  to  answer  for  any  debt 
or  damage  out  of  his  own  estate ;  second,  to  charge  any  person 
upon  any  special  promise  to  answer  for  the  debt,  default,  or  mis- 
carriage of  another ;  third,  to  charge  any  person  upon  an  agree- 
ment made  in  consideration  of  marriage ;  fourth,  to  charge  any 
person  upon  any  contract  for  the  sale  of  lands,  tenements,  or 
hereditaments,  or  any  interest  in  or  concerning  them;  fifth, 
to  charge  any  person  upon  any  lease  of  lands,  tenements,  or 
hereditaments,  for  a  longer  term  than  one  year ;  sixth,  to  charge 
any  person,  upon  any  contract,  promise,  or  agreement,  that  is  not 
to  be  performed  within  one  year  from  the  making  thereof;  unless 
the  agreement,  promise,  or  contract,  upon  which  such  action  shall 
be  brought,  or  some  memorandum  or  note  thereof  shall  be  made 
in  writing,  and  signed  by  the  party  to  be  charged  therewith,  or 
signed  by  some  other  person  by  him  thereunto  properly  authorized. 

Sec.  2.  No  contract  for  the  sale  of  goods,  wares,  and  merchan- 
dise, for  the  price  of  thirty  dollars,  or  upwards,  shall  be  binding 
on  the  parties,  unless  first,  there  be  some  note  or  memorandum 
signed  by  the  party  to  be  charged ;  or,  second,  ±he  purchaser  shall 
accept  part  of  the  goods  so  sold,  and  actually  receive  the  same ; 
or,  third,  shall  give  something  in  earnest  to  bind  the  bargain,  or 
in  part  payment  thereof. 

CALIFORNIA. 

Hittel's  General  Laws,  1865.     [Act  of  April  19,  1850.] 

3152.  Every  contract  for  the  leasing  for  a  longer  period  than 
one  year  or  for  the  sale  of  any  lands,  or  any  interest  in  lands,  shall 
be  void,  unless  the  contract,  or  some  note  or  memorandum  thereof, 
expressing  the  consideration,  be  in  writing,  and  be  subscribed  by 
the  party  to  whom  the  lease  or  sale  is  to  be  made. 


The  Statute  of  Feauds.  37 

31j3.  Every  instrument  required  to  be  subscribed  by  any  person, 
under  the  last  preceding  section,  may  be  subscribed  by  the  agent 
of  such  party,  lawfully  authorized. 

3154.  Nothing  contained  in  this  chapter  shall  be  construed  to 
abridge  the  powers  of  courts  to  compel  the  specific  performance 
of  agreements,  in  cases  of  part  performance  of  such  agreements- 

3156.  In  the  following  cases,  every  agreement  shall  be  void,  unless 
such  agreement,  or  some  note  or  memorandum  thereof,  expressing 
the  consideration,  be  in  writing,  and  subscribed  by  the  party  charged 
therewith  :  first,  every  agreement  that  by  the  terms  is  not  to  be  per- 
formed within  one  year  from  the  making  thereof;  second,  every 
special  promise  to  answer  for  the  debt,  default,  or  miscarriage  of 
another;  third,  every  agreement,  promise,  or  undertaking,  made 
upon  consideration  of  marriage,  except  mutual  promises  to  marry. 

3157.  Every  contract  for  the  sale  of  any  goods,  chattels,  or 
things  in  action,  for  the  price  of  two  hundred  dollars  or  over, 
shall  be  void,  unless,  first,  a  note  or  memorandum  of  such  contract 
be  made  in  writing,  and  be  subscribed  by  the  parties  to  be  charged 
therewith ;  or,  second,  unless  the  buyer  shall  accept  and  receive 
part  of  such  goods,  or  the  evidences,  or  some  of  them,  of  such 
things  in  action ;  or,  third,  unless  the  buyer  shall  at  the  time  pay 
some  part  of  the  purchase-money. 

3158.  Whenever  any  goods  shall  be  sold  at  auction,  and  the 
auctioneer  shall,  at  the  time  of  sale,  enter  in  a  sale-book  a  meino- 
randum,  specifying  the  nature  and  price  of  the  property  sold,  the 
terms  of  the  sale,  the  name  of  the  purchaser  and  the  name  of  the 
person  on  whose  account  the  sale  is  made;  such  memorandum 
shall  be  deemed  a  note  of  the  contract  of  sale  within  the  meaning 
of  the  last  section, 

3163.  Every  instrument  required  by  any  of  the  provisions  of 
this  chapter  to  be  subscribed  by  any  party  may  be  subscribed  by 
the  lawful  agent  of  such  party. 

[Act  of  May  1,  1851.] 
5913.  No  executor  or  administrator  shall  be  chargeable  upon  any 
special  promise  to  answer  damages,  or  to  pay  the  debts  of  the  tes- 
tator or  intestate  out  of  his  own  estate,  unless  the  agreement  for 
that  purpose,  or  some  memorandum  or  note  thereof,  is  in  writing, 
and  signed  by  such  executor  or  administrator,  or  by  some  other 
person  by  him  thereunto  specially  authorized. 


38  The  Statute  of  Frauds. 

CONNECTICUT. 

General  Statutes,  1866.     Title  25. 

Sec.  1.  That  for  the  prevention  of  many  fraudulent  practices 
which  are  commonly  endeavored  to  be  upheld  by  perjury,  and 
subornation  of  perjury,  no  suit  in  law  or  equity  shall  be  brought 
or  maintained  upon  any  contract  or  agreement,  whereby  to  charge 
any  executor  or  administrator,  upon  special  promise,  to  answer 
damages  out  of  his  own  estate ;  or  whereby  to  charge  the  defend- 
ant upon  any  special  promise,  to  answer  for  the  debt,  default,  or 
miscarriage  of  another  person ;  or  to  charge  any  person  upon  any 
agreement  made  upon  consideration  of  marriage ;  or  upon  any 
contract  for  the  sale  of  lands,  tenements,  or  hereditaments,  or  any 
interest  in  or  concerning  them ;  or  upon  any  agreement  that  is 
not  to  be  performed  within  the  space  of  one  year  from  the  making 
thereof;  unless  the  contract  of  agreement  upon  which  such  action 
shall  be  brought,  or  some  memorandum  or  note  thereof,  shall 
be  made  in  writing,  and  signed  by  the  party  to  be  charged  there- 
with, or  by  some  other  person  thereunto  by  him  lawfully  author- 
ized, but  all  parol  contracts  or  agreements,  made  for  the  hiring  or 
leasing  of  any  lands  or  tenements  or  of  any  interest  therein,  for 
the  term  of  only  one  year,  or  for  any  less  time  than  one  year,  in 
pursuance  of  which  the  leased  premises  have  been,  or  shall  be, 
actually  occupied  by  the  lessee,  or  by  any  person  claiming  under 
him,  during  any  portion  of  the  period  covered  by  such  contract 
or  agreement  shall  be  as  valid  and  effectual  as  if  the  same  were  in 
Avriting,  and  signed  by  the  parties  thereto,  and  nothing  herein 
shall  be  so  construed  as  to  prevent  an  action  being  brought  or 
sustained  thereon. 

Sec.  2.  No  contract  for  the  sale  of  any  goods,  wares,  or  mer- 
chandise, for  the  price  of  thirty-five  dollars  or  upwards,  shall  be 
allowed  to  be  good,  unless  the  buyer  shall  accept  part  of  the  goods 
so  sold,  and  actually  receive  the  same,  or  give  something  in 
earnest  to  bind  the  bargain,  or  in  part  payment,  or  unless  some 
note  or  memorandum,  in  writing,  of  the  said  bargain,  shall  be 
made  and  signed  by  the  parties  to  be  charged  by  such  contract,  or 
by  their  agents,  thereunto  lawfully  authorized. 


The  Statute  of  Frauds.  39 

DELAWAEE. 

Revised  Statutes  of  1852.    Chapter  63. 

Sec.  5.  All  promises  and  assumptions,  whereby  any  person  shall 
undertake  to  answer  or  pay  for  the  default,  debt,  or  miscarriage 
of  another,  any  sum  under  five  dollars,  being  proved  by  the  oath 
or  affirmation  of  the  persons  to  whom  sucli  promise  and  assump- 
tion shall  be  made,  are  good  and  available  in  law  to  charge  the 
party  making  such  promise  or  assumption. 

Sec.  6.  No  action  shall  be  brought,  whereby  to  charge  any 
executor  or  administrator,  upon  any  special  promise  to  answer 
damages  out  of  his  own  estate,  or  whereby  to  charge  any  defend- 
ant, upon  any  special  promise,  to  answer  for  the  debt,  default,  or 
miscarriage  of  another  person,  of  the  value  of  five  dollars,  and 
not  exceeding  tAventy  dollars,  unless  such  promise  and  assumption 
shall  be  proved  by  the  oath,  or  affirmation,  of  one  credible  wit- 
ness, or  some  memorandum,  or  note  in  writing,  shall  be  signed  by 
the  party  to  be  charged  therewith. 

Sec.  7.  No  action  shall  be  brought  whereby  to  charge  any 
person  upon  any  agreement  made  upon  consideration  of  marriage, 
or  upon  any  contract  or  sale  of  lands,  tenements,  or  heredita- 
ments, or  any  interest  in,  or  concerning  them,  or  upon  any  agree- 
ment that  is  not  to  be  performed  within  the  space  of  one  year 
from  the  making  thereof,  or  to  charge  any  person  whereby  to 
answer  for  the  debt,  deftiult,  or  miscarriage,  of  another,  in  any 
sum  of  the  value  of  twenty-five  dollars  and  upwards,  unless  the 
same  shall  be  reduced  to  writing,  or  some  memorandum  or  note 
thereof  shall  be  signed  by  the  party  to  be  charged  therewith,  or 
some  other  person  thereunto  by  him  lawfully  authorized  ;  except 
for  goods,  wares,  and  merchandise  sold  and  delivered,  and  other 
matters  which  are  properly  chargeable  in  an  account,  in  which 
case  the  oath  or  affirmation  of  the  plaintiff,  together  with  a  book 
regularly  and  fairly  kept,  shall  be  allowed  to  be  given  in  evidence, 
in  order  to  charge  the  defendant  with  the  sums  therein  contained. 


40  The  Statute  of  Frauds 

FLORIDA. 

Thompson's  Digest,  1847.     Second  Division.    Title  4,  chap.  3,  page  217. 

Sec.  1.  No  action  shall  be  brought  whereby  to  charge  any 
executor  or  administrator  upon  any  special  promise  to  answer,  or 
pay  any  debt  or  damages  out  of  his  own  estate,  or  whereby  to 
charge  the  defendant  upon  any  special  promise  to  answer  for  the 
debt,  default,  or  miscarriage  of  another  person,  or  to  charge  any 
person  upon  any  agreement  made  upon  consideration  of  marriage, 
or  upon  any  contract  for  the  sale  of  lands,  tenements,  or  heredita- 
ments, or  of  any  uncertain  interest  in,-  or  concerning  them,  or  for 
any  lease  thereof  for  a  longer  term  than  one  year,  or  upon  any 
agreement  that  is  not  to  be  performed  within  one  year  from  the 
making  thereof,  unless  the  agreement  or  promise  upon  which  such 
action  shall  be  brought,  or  some  note  or  memorandum  thereof, 
shall  be  in  writing  and  signed  by  the  party  to  be  charged  there- 
with, or  by  some  other  person  by  him  thereunto  lawfully 
authorized. 

Sec.  2.  No  contract  for  the  sale  of  any  personal  property,  goods, 
wares,  or  merchandise,  shall  be  good,  unless  the  buyer  shall  accept 
the  goods  or  part  of  them  so  sold,  and  actually  receive  the  same, 
or  give  something  in  earnest  to  bind  the  bargain,  or  in  part  pay- 
ment, or  some  note  or  memorandum  in  writing  of  the  said  bargain 
or  contract  be  made,  and  signed  by  the  parties  to  be  charged  by 
such  contract,  or  their  agents  thereunto  lawfully  authorized. 

GEOEGIA. 

Irwin's  Code,  1867.    (Adopted  1860.) 

Sec.  1940.  To  make  the  following  obligations  binding  on  the 
promiser  the  promise  must  be  in  writing,  signed  by  the  party  to 
be  charged  therewith,  or  some  person  by  him  lawfully  authorized, 
viz.: 

1.  A  promise  by  an  executor,  administrator,  guardian,  or  trustee 
to  answer  damages  out  of  his  own  estate. 

2.  A  promise  to  answer  for  the  debt,  default,  or  miscarriage  of 
another. 

3.  Any  agreement  made  upon  consideration  of  marriage,  except 
marriage  articles  as  herein  before  provided. 


The  Statute  of  Frauds.  41 

4.  Any  contract  for  sale  of  lands,  or  any  interest  in,  or  concern- 
ing them. 

5.  Any  agreement  (except  contracts  with  overseer^)  that  is  not 
to  be  performed  within  one  year  from  the  making  thereof. 

6.  Any  promise  to  revive  a  debt  barred  by  the  acts  of  limita- 
tion. 

7.  Any  contract  for  the  sale  of  goods,  wares,  and  merchandise 
in  existence,  or  not  in  esse,  to  the  amount  of  fifty  dollars  or  more, 
except  the  buyer  shall  accept  part  of  the  goods  sold  and  actually 
receive  the  same,  or  give  something  in  earnest  to  bind 'the  bargain, 
or  in  part  payment. 

Sec.  1941.  The  foregoing  section  dcfes  not  extend  to  the  following 
cases  viz. : 

1.  "When  the  contract  has  been  fully  executed. 

2.  Where  there  has  been  performance  on  one  side,  accepted  by 
the  other  in  accordance  with  the  contract. 

3.  Where  there  has  been  such  part  performance  of  the  contract 
as  would  render  it  a  fraud  of  the  party  refusing  to  comply  if  the 
Court  did  not  compel  a  performance. 

ILLINOIS. 

Scatea,  Treat  and  Blackwell's  Statutes,  1858.    Vol.  1,  pp.  541,  542. 

[From  R.  S.,  1845,  ch.  44.] 

Sec.  1.  No  action  shall  be  brought,  whereby  to  charge  any 
executor  or  administrator,  upon  any  special  promise,  to  answer 
any  debt  or  damages  out  of  his  own  estate,  or  whereby  to  charge 
the  defendant,  upon  any  special  promise,  to  answer  for  the  debt, 
default,  or  miscarriage  of  another  person ;  or  to  charge  any  person 
upon  any  agreement  made  upon  consideration  of  marriage,  or  upon 
any  contract  for  the  sale  of  lands,  tenements,  or  hereditaments, 
or  any  interest  m  or  concerning  them,  for  a  longer  term  than  one 
year;  or  upon  any  agreement  that  is  not  to  be  performed  witliin 
the  space  of  one  year  from  the  making  thereof,  unless  the  promise 
or  agreement  upon  which  such  action  shall  be  brought,  or  some 
note  or  memorandum  iliereof,  shall  be  in  writing,  and  signed  by 
the  party  to  be  charged  therewith,  or  some  other  person  thereunto 
by  him  lawfully  authorized. 


42  The  Statute  of  Frauds. 

INDIANA. 

Gavin  and  Herd's  edition  of  the  Statutes,  1862.    Vol.  1,  pp.  848,  351. 
[Act  of  June  9, 1852.] 

Sec.  1.  No  action  shall  be  brought  in  any  of  the  following 
cases : 

1.  To  charge  an  executor  or  administrator,  upon  any  special 
promise,  to  answer  damages  out  of  his  own  estate ;  or, 

2.  To  charge  any  person,  upon  any  special  promise,  to  answer 
for  the  debt,  default  or  miscarriage  of  another;  or, 

3.  To  charge  any  person,  upon  any  agreement  or  promise  made 
in  consideration  of  marriage ;  or, 

4.  Upon  any  contract  for  the  sale  of  lands ;  or, 

5.  Upon  any  agreement  that  is  not  to  be  performed  within  one 
year  from  the  making  thereof;  unless  the  promise,  contract  or 
agreement,  upon  which  such  action  shall  be  brought,  or  some 
memorandum  or  note  thereof,  shall  be  in  writing  and  signed  by 
the  party  to  be  charged  therewith,  or  by  some  person  thereunto 
by  him  lawfully  authorized ;  excepting,  however,  leases  not  exceed- 
ing the  term  of  three  years. 

Sec.  2.  The  consideration  of  any  such  promise,  contract,  or 
agreement,  need  not  be  set  forth  in  such  writing,  but  may  be 
proved. 

Sec.  5.  Nothing  contained  in  any  statute  of  this  state  shall  be 
construed  to  abridge  the  powers  of  courts  to  compel  the  specific 
performance  of  agreements  in  cases  of  part  performance  of  such 
agreements. 

Sec.  6.  No  action  shall  be  maintained,  to  charge  any  person  by 
reason  of  any  representation  made  concerning  the  character,  con- 
duct, credit,  ability,  trade  or  dealings  of  any  other  person,  iinless 
such  representation  be  made  in  writing,  and  signed  by  the  party 
to  be  charged  thereby,  or  by  some  person  thereunto  by  him  legally 
authorized. 

Sec.  7.  No  contract  for  the  sale  of  any  goods  for  the  price  of 
fifty  dollars  or  more  shall  be  valid,  unless  the  purchaser  shall 
receive  part  of  such  property,  or  shall  give  something  in  earnest 


The  Statute  of  Frauds.  43 

to  bind  the  bargain  or  in  part  payment,  or  unless  some  note  or 
memorandum  in  writing  of  the  bargain  be  made,  and  signed  by 
the  party  to  be  charged  thereby,  or  by  some  person  thereunto  by 
him  lawfully  authorized. 


IOWA. 

Revision  of  18G0. 

Sec.  1824.  All  contracts  in  writing  hereafter  made  and  signed 
by  the  party  to  be  bound  or  his  authorized  agent  or  attorney 
shall  import  a  consideration  in  the  same  manner  as  sealed  instru- 
ments now  do. 

Sec.  4006.  Except  wlien  otherwise  specially  provided,  no  evi- 
dence of  any  of  t*he  contracts  enumerated  in  the  next  succeeding 
section  is  competent,  unless  it  be  in  writing,  and  signed  by  the 
party  charged  or  by  his  lawfully  authorized  agent. 

Sec.  4007.  Such  contracts  embrace : 

1.  Those  in  relation  to  the  sale  of  personal  property,  when  no 
part  of  the  property  is  delivered,  and  no  part  of  the  price  is  paid. 

2.  Those  made  in  consideration  of  marriage,  but  not  including 
promises  to  marry. 

3.  Those  wherein  one  person  promises  to  answer  for  the  debt, 
default  or  miscarriage  of  another,  including  promises  by  execu- 
tors to  pay  the  debt  of  their  principals  from  their  own  estate. 

4.  Those  for  the  creation  or  transfer  of  any  interest  in  lands, 
except  leases  for  a  term  not  exceeding  one  year. 

5.  Those  that  are  not  to  be  performed  within  one  year  from  the 
making  thereof. 

Sec.  4008.  The  provision  of  the  first  subdivision  of  the  pre- 
ceding section  does  not  apply  when  the  article  of  personal  prop- 
erty sold  is  not  at  the  time  of  the  contract  owned  by  the  vendor 
and  ready  for  delivery,  but  labor,  skill,  or  money  are  necessarily 
to  be  expended  in  producing  or  procuring  the  same ;  nor  do  those 
of  the  fourth  subdivision  of  said  section  apply  where  the  pur- 
chase-money or  any  portion  thereof  has  been  received  by  the 
vendor,  or  when  the  vendee,  with  the  actual  or  implied  consent  of 
the  vendor,  has  taken  and  held  possession  thereof  under  and  by 
virtue  of  the  contract,  or  when  there  is  any  other  circumstance 


44  The  Statute  of  Frauds. 

which  by  the  law  heretofore  in  force  would  have  taken  a  case  out 
of  the  Statute  of  Frauds. 

Sec.  4009.  The  above  regulations,  relating  merely  to  the  proof 
of  contracts,  do  not  prevent  the  enforcement  of  those  which  are 
not  denied  in  the  pleadings,  unless  in  cases  where  the  contract  is 
sought  to  be  enforced,  or  damages  to  be  recovered  for  the  breach 
thereof,  against  some  person  other  than  him  who  made  it. 

Sec.  4010.  Nothing  in  the  above  provisions  shall  prevent  the 
party  himself,  against  whom  the  unwritten  contract  is  sought  to 
be  enforced,  from  being  called  as  a  witness  by  the  opposite  party, 
nor  his  oral  testimony  from  being  evidence. 


KANSAS. 

General  Statutes  of  1868.  Chapter  43. 
Sec.  6.  No  action  shall  be  brought  whereby  to  charge  a  party, 
upon  any  special  promise,  to  answer  for  the  debt,  default,  or  mis- 
carriage of  another  person,  or  to  charge  any  executor  or  adminis- 
trator upon  any  special  promise  to  answer  damages  out  of  his 
own  estate,  or  to  charge  any  person  upon  any  agreement  made 
upon  consideration  of  marriage,  or  upon  any  contract  for  the  sale 
of  lands,  tenements  or  hereditaments,  or  any  interest  in  or  con- 
cerning them,  or  upon  any  agreement  that  is  not  to  be  performed 
within  the  space  of  one  year  from  the  making  thereof,  unless  the 
agreement  upon  which  such  action  shall  be  brought,  or  some 
memorandum  or  note  thereof,  shall  be  in  writing,  and  signed  by 
the  party  to  be  charged  therewith,  or  some  other  person  thereunto 
by  him  or  her  lawfully  authorized. 


KENTUCKY. 

Revised  Statutes,  Stanton's  edition,  1859.    Chapter  22. 
Sec.  1.  No  action  shall  be  brought  to  charge  any  person, 

1.  For  a  representation  or  assurance  concerning  the  character, 
conduct,  credit,  ability,  trade,  or  dealings  of  another,  made  with 
intent  that  such  other  may  obtain  thereby  credit,  money,  or 
goods;  nor, 

2.  Upon  a  promise  to  pay  a  debt  contracted  during  infancy,  oi 
a  ratification  of  a  contract  or  promise  made  during  infancy ;  nor, 


The  Statute  of  Frauds.  45 

3.  Upon  a  promise  as  personal  representative  to  answer  any 
debt  or  damage  out  of  his  own  estate ;  nor, 

4.  Upon  a  promise  to  answer  for  the  debt,  default  or  misdoing 
of  another;  nor, 

5.  Upon  any  agreement  made  in  consideration  of  marriage, 
except  mutual  promises  to  marry ;  nor, 

6.  Upon  any  contract  for  the  sale  of  real  estate,  or  any  lease 
thereof,  for  a  longer  term  than  one  year ;  nor, 

7.  Upon  any  agreement  which  is  not  to  be  performed  within 
one  year  from  the  making  thereof;  unless  the  promise,  contract, 
agreement,  representation,  assurance  or  ratitication,  or  some  memo- 
randum or  note  thereof,  be  in  writing,  and  signed  at  the  close 
thereof  by  the  party  to  be  charged  therewith,  or  by  his  authorized 
agent.  But  the  consideration  need  not  be  expressed  in  the 
writing ;  it  may  be  proved  ■\vhen  necessary,  or  disproved,  by  parol 
or  other  evidence. 

Sec.  2.  A  seal  or  scroll  shall  in  no  case  be  necessary  to  give 
effect  to  a  deed  or  other  writing,  but  a  signature  without  seal 
shall  have  the  same  efficacy  for  every  purpose  as  if  a  seal  were 
affixed  thereto ;  and  all  writings  so  executed  shall  stand  upon  the 
same  footing  with  sealed  writings,  having  the  same  force  and 
effect,  and  upon  which  the  same  actions  may  be  founded.  But 
this  section  shall  not  apply  to  an  assignment  by  indorsement  on  a 
bond,  note,  or  bill,  nor  shall  it  alter  any  law  requiring  the  state  or 
county  seal,  or  the  seal  of  a  court,  corporation,  or  notary,  to  any 
writing. 

LOUISIANA. 

Acts  of  1858.    No.  208. 

Sec.  3.  Be  it  further  enacted,  etc.,  that  hereafter,  parol  evidence 
shall  not  be  received  to  prove  any  promise  to  pay  the  debt  of  a 
third  person ;  but  that  in  all  such  cases  the  promise  to  pay  shall 
be  proved  by  written  evidence,  signed  by  the  party  to  be  charged, 
or  by  his  specially  authorized  agent  or  attorney  in  fact. 

Civil  Code. 

[Various  provisions  of  the  Civil  Code  relate  indirectly  to  some 
of  the  matters  provided  for  in  the  4th  and  17th  sections  of  the 
Statute  of  Frauds,  but  the  following  contain,  it  is  believed,  all 
the  provisions  relating  directly  thereto.] 


46  The  Statute  of  Frauds. 

Art,  2308.  Every  matrimonial  agreement  must  be  made  by  an 
act  before  a  notary  and  two  witnesses. 

The  practice  of  marriage  agreement  under  private  signature  is 
abrogated. 

Art.  2311.  The  most  ordinary  conventions  in  marriage  con- 
tracts are  the  settlement  of  the  dowry,  and  the  various  donations 
which  the  husband  and  wife  may  make  to  each  other,  either 
reciprocally  or  the  one  to  the  other,  or  which  they  may  receive 
from  others,  in  consideration  of  the  marriage. 

Art.  2316.  Husband  and  wife  may,  by  their  marriage  contract, 
make  reciprocally  or  one  to  the  other,  or  receive  from  other  per- 
sons, in  consideration  of  their  marriage,  every  kind  of  donations, 
according  to  the  rules  and  under  the  modifications  prescribed  in 
the  title  of  donations  inter  vivos  and  mortis  causa. 

Art.  2255.  Every  transfer  of  immovable  property  or  slaves 
must  be  in  writing ;  but  if  a  verbal  sale  or  other  disposition  of 
such  property  be  made,  it  shall  be  good  against  the  vendor,  as 
well  as  against  the  vendee  who  confesses  it  when  interrogated  on 
oath,  provided  actual  delivery  has  been  made  of  the  immovable 
property  or  slaves  thus  sold. 

Art.  2415.  All  sales  of  immovable  property  or  slaves  shall  be 
made  by  authentic  act,  or  under  private  signature. 

All  verbal  sale  of  any  of  these  things  shall  be  null,  as  well  for 
third  persons  as  for  the  contracting  parties  themselves,  and  the 
testimonial  proof  of  it  shall  not  be  admitted. 

Art.  2437.  A  promise  to  sell  amounts  to  a  sale,  when  there 
exists  a  reciprocal  consent  of  both  parties,  as  to  the  thing  and  tho 
price  thereof;  but  to  have  its  effect,  either  between  the  contract- 
ing parties,  or  with  regard  to  other  persons,  the  promise  to  sell 
must  be  vested  with  the  same  formalities  as  are  above  prescribed 
in  articles  2414  and  2415  concerning  sales,  in  all  cases  where  the 
law  directs  that  the  sale  be  committed  to  writing. 


The  Statute  of  Frauds.  47 


MAINE. 

Revised  Statutes  of  1857.    Chapter  111. 

Sec.  1.  No  action  shall  be  maintained  in  any  of  the  following 
3ase8 : 

1.  To  charge  an  executor  or  administrator,  upon  any  special 
promise,  to  answer  damages  out  of  his  own  estate. 

2.  To  charge  any  person,  upon  any  special  promise,  to  answer 
for  the  debt,  default,  or  misdoings  of  another. 

3.  To  charge  any  person,  upon  an  agreement  made  in  consid- 
eration of  marriage. 

4.  Upon  any  contract  for  the  sale  of  lands,  tenements,  or  here- 
ditaments, or  of  any  interest  in  or  concerning  them. 

5.  Upon  any  agreement  that  is  not  to  be  performed  within  one 
year  from  the  making  thereof. 

6.  Upon  any  contract  to  pay  a  debt  after  a  discharge  therefrom 
under  the  bankrupt  laws  of  the  United  States,  or  assignment 
laws  of  this  state. 

Unless  the  promise,  contract,  or  agreement,  upon  which  such 
action  is  brought,  or  some  memorandum  or  note  thereof,  is  in 
writing,  and  signed  by  the  party  to  be  charged  therewith,  or  by 
some  person  thereunto  lawfully  authorized. 

Sec.  2.  The  consideration  of  any  such  promise,  contract,  or 
agreement  need  not  be  expressed  in  said  writing ;  but  may  be 
proved  by  any  other  legal  evidence. 

Sec.  4.  No  action  shall  be  maintained,  to  charge  any  person  by 
reason  of  any  representation  or  assurance,  made  concerning  the 
character,  conduct,  credit,  ability,  trade,  or  dealings  of  another, 
unless  made  in  writing,  and  signed  ^  by  the  party  to  be  charged 
thereby,  or  by  some  person  by  him  legally  authorized. 

Sec.  5.  No  contract  for  the  sale  of  any  goods,  wares,  or  mer- 
chandise, for  thirty  dollars,  or  more,  shall  be  valid,  unless  the  pur- 
chaser accepts  and  receives  part  of  the  goods,  or  gives  something 
in  earnest  to  bind  the  bargain,  or  in  part  payment  thereof,  or 
some  note  or  memorandum  thereof  is  made,  and  signed  by  the 
party  to  be  charged  thereby,  or  by  his  agent! 


48  The  Statute  of  Frauds. 


MARYLAND. 

[In  Sibley  v.  Williams,  3  Gill  and  Johnson,  62,  A.  D.  1830,  the 
Court  of  Appeals  declared  that  "  It  has  always  been  understood  that 
the  judges  under  the  old  government  laid  it  down  as  a  general  rule, 
that  all  statutes  for  the  administration  of  justice,  whether  made 
before  or  after  the  charter"  (1628),  "  so  far  as  they  were  applicable, 
should  be  adopted."  A  clause  substantially  to  the  same  effect  was 
contained  in  the  third  article  of  the  Declaration  of  Rights  adopted 
in  1776,  and  has  been  continued,  with  slight  yariations,  in  eyery 
subsequent  change  of  the  Constitution ;  and  accordingly,  all  the 
provisions  of  29  Car.  II,  chap.  3,  have  been  regarded  as  of  force 
within  the  province  and  the  state,  without  any  legislative  re-enact- 
ment. Sec  also,  Clayland's  Lessee  v.  Pearcc,  1  Harris  &  McHenry, 
29,  A.  D.  1714.  The  existing  Constitution,  adopted  in  1868,  con- 
tains a  clause  (article  5,)  adopting  all  English  statutes  in  force 
on  the  4th  of  July,  1776,  which  are  locally  applicable,  and  which 
have  been  introduced,  used  and  practiced  by  the  courts,  subject  to 
the  action  of  the  legislature  of  the  state.] 


MASSACHUSETTS. 

Eevised  Statutes  of  1859.    Chapter  105. 

Sec.  1.  No  action  shall  be  brought  in  any  of  the  following 

cases,  that  is  to  say : 

1.  To  charge  an  executor,  administrator,  or  assignee,  under  any 
insolvent  law  of  this  commenwealth,  upon  a  special  promise,  to 
answer  damages  out  of  his  own  estate : 

2.  To  charge  a  person,  upon  a  special  promise,  to  answer  for  the 
debt,  default,  or  misdoings  of  another : 

3.  Upon  an  agreement  made  upon  consideration  of  marriage : 

4.  Upon  a  contract  for  the  sale  of  lands,  tenements,  or  heredita- 
ments, or  of  any  interest  in  or  concerning  them :  or, 

5.  Upon  an  agreement  that  is  not  to  be  performed  within  one 
year  from  the  making  thereof: 

Unless  the  promise,  contract,  or  agreement,  upon  which  such 
action  is  brought,  or  some  memorandum  or  note  thereof,  is  in 
writing  a.nd  signed  by  the  party  to  be  charged  therewith,  or  by 
some  person  thereunto  by  him  lawfully  authorized. 


The  Statute  of  Frauds.  49 

Sec.  2.  The  consideration  of  such  promise,  contract,  or  agree- 
ment need  not  be  set  forth  or  expressed  in  the  writing  signed  by 
the  party  to  be  charged  therewith,  but  may  be  proved  by  any  other 
legal  evidence. 

Sec.  4.  No  Oiction  shall  be  brought  to  charge  a  person,  upon  or  by 
reason  of  any  representation  or  assurance  made  concerning  the 
character,  conduct,  credit,  ability,  trade  or  dealings  of  any  other 
person,  unless  such  representation  or  assurance  is  made  in  writing, 
and  signed  by  the  party  to  be  charged  thereby,  or  by  some  person 
thereunto  by  him  lawfully  authorized. 

Sec.  5.  No  contract  for  the  sale  of  goods,  wares,  or  merchandise, 
for  the  price  of  fifty  dollars  or  more,  shall  be  good  or  valid,  unless 
the  purchaser  accepts  and  receives  part  of  the  goods  so  sold,  or 
gives  something  in  earnest  to  bind  the  bargain,  or  in  part  payment; 
or  unless  some  note  or  memorandum  in  writing  of  the  bargain  be 
made  and  signed  by  the  party  to  be  charged  thereby,  or  by  some 
person  thereunto  by  him  lawfully  authorized. 

MIOHIGAK 

Compiled  Laws  of  1857.  Chapter  104. 
Sec.  8.  Every  contract  for  the  leasing  for  a  longer  period  than 
one  year,  or  for  the  sale  of  any  lands,  or  any  interest  in  lands, 
shall  be  void,  unless  the  contract  or  some  note  or  memorandum 
thereof,  be  in  writing,  and  signed  by  tlie  party  by  whom  the  lease 
or  sale  is  to  be  made,  or  by  some  person  thereunto  by  him  lawfully 
authorized  by  writing. 

Sec.  9.  The  consideration  of  any  contract  or  agreement,  required 
by  the  provisions  of  this  chapter  to  be  in  writing,  need  not  be  set 
forth  in  the  contract  or  agreement,  or  in  the  note  or  memorandum 
thereof,  but  may  be  proved  by  any  other  legal  evidence. 

Sec.  10.  Nothing  in  this  chapter  contained,  shall  be  construed 
to  abridge  the  powers  of  the  Court  of  Chancery  to  compel  the 
specific  performance  of  agreements,  in  cases  of  part  performance  of 
such  agreements. 

Chapter  106. 

Sec.  2.  In  the  following  cases  specified  in   this  section   every 
agreement,  contract  and  promise  shall  be  void,  unless  such  agree- 
7 


50  The  Statute  of  Fkauds. 

ment,  contract,  or  promise,  or  some  note  or  memorandum  thereof, 
be  in  writing,  and  signed  by  the  party  to  be  charged  therewith,  or 
by  some  person  by  him  thereunto  lawfully  authorized,  that  is  to  say : 

1.  Every  agreement  that,  by  its  terms,  is  not  to  be  performed  in 
one  year  from  the  making  thereof 

2.  Every  special  promise  to  answer  for  the  debt,  default,  or  mis- 
doings of  another  person. 

3.  Every  agreement,  promise,  or  undertaking  made  upon  con- 
sideration of  marriage,  except  mutual  promises  to  marry. 

4.  Every  special  promise  made  by  an  executor  or  administrator 
to  answer  damages  out  of  his  own  estate. 

Sec.  3.  No  contract  for  the  sale  of  any  goods,  wares,  or  mer- 
chandise, for  the  price  of  fifty  dollars  or  more,  shall  be  valid,  unless 
the  purchaser  shall  accept  and  receive  part  of  the  goods  sold,  or 
shall  give  something  in  earnest  to  bind  the  bargain,  or  in  part  pay- 
ment, or  unless  some  note  or  memorandum  in  writing  of  the  bar- 
gain be  made  and  signed  by  the  party  to  be  charged  thereby,  or  by 
some  person  thereunto  by  him  lawfully  authorized. 

Sec.  4.  Whenever  any  goods  shall  be  sold  at  auction,  and  the 
auctioneer  shall,  at  the  time  of  sale,  enter  in  a  sale-book  a  memo- 
randum specifying  the  nature  and  price  of  the  property  sold,  the 
terms  of  the  sale,  the  name  of  the  purchaser,  and  the  name  of  the 
person  on  whose  account  the  sale  is  made,  such  memorandum  shall 
be  deemed  a  memorandum  of  the  contract  of  sale  within  the  mean- 
ing of  the  last  section. 

Sec.  5.  No  action  shall  be  brought  to  charge  any  person,  upon  or 
by  reason  of  any  favorable  representation  or  assurance,  made  con- 
cerning the  character,  conduct,  credit,  ability,  trade,  or  dealings  of 
any  other  person,  unless  such  representation  or  assurance  be  made 
in  writing,  and  signed  by  the»party  to  be  charged  thereby,  or  by 
some  person  thereunto  by  him  lawfully  authorized. 

Sec.  6.  The  consideration  of  any  contract,  agreement  or  promise, 
required  by  this  chapter  to  be  in  writing,  need  not  be  expressed  in 
the  written  contract,  agreement,  or  promise,  or  in  any  note  or  mem- 
orandum thereof,  but  may  be  proved  by  any  other  legal  evidence. 


The  Statute  of  Frauds.  51 

MINNESOTA. 

General  Statutes  of  1866.    Chapter  41.    Title  II. 

Sec.  6.  No  action  shall  be  maintained  in  either  of  the  followin;^ 
cases  upon  any  agreement  unless  such  agreement,  or  some  note  or 
memorandum  thereof  expressing  the  consideration,  is  in  writing 
and  subscribed  by  the  party  charged  therewith  : 

1.  Every  agreement  that  by  its  terms  is  not  to  be  performed 
within  one  year  from  the  making  thereof; 

2.  Every  special  promise  to  answer  for  the  debt,  default  or 
doings  of  another ; 

3.  Every  agreement,  promise  or  undertaking,  made  upon  con- 
sideration of  marriage,  except  mutual  promise  to  marry. 

Sec.  7.  Every  contract  for  the  sale  of  any  goods,  chattels,  or 
things  in  action,  for  the  price  of  fifty  dollars  or  more,  shall  be 
void,  unless, 

1.  A  note  or  memorandum  of  such  contract  is  made  in  writing 
and  siibscribed  by  the  parties  to  be  charged  therewith ;  or, 

2.  Unless  the  buyer  accepts  and  receives  part  of  such  goods, 
or  the  evidences,  or  some  of  them,  of  such  things  in  action ;  or, 

3.  Unless  the  buyer  at  the  time  pays  some  part  of  the  purchase 
money.  » 

Sec.  8.  Whenever  goods  are  sold  at  public  auction,  and  the 
auctioneer  at  the  time  of  sale,  enters  into  a  sale-book  a  memoran- 
dum specifying  the  nature  and  price  of  the  property  sold,  tlie 
terms  of  the  sale,  name  of  tlie  purchaser,  and  the  name  of  the 
person  on  whose  account  the  sale  is  made;  such  memorandum 
shall  be  deemed  a  note  of  the  contract  of  sale  within  the  meaning 
of  the  last  section. 

Sec.  12.  Every  contract  for  the  leasing  for  a  longer  period  than 
one  year,  or  for  the  sale  of  any  lands,  or  any  interest  in  lands, 
shall  be  void,  unless  the  contract,  or  some  note  or  memorandum 
thereof,  expressing  the  consideration,  is  in  writing  and  subscribed 
by  the  party  to  whom  the  lease  or  sale  is  to  be  made,  or  by  his 
authorized  agent. 

Sec.  13.  Nothing  in  this  chapter  contained  shall  be  construed  to 
abridge  the  power  of  courts  of  equity  to  compel  the  specific  perform- 
ance of  agreements  in  cases  of  part  performance  of  such  agreements. 


62  The  Statute  of  Fkauds 

MISSISSIPPI. 

Hutchinson's  Code,  1848.    Chapter  47.    Article  1. 

[Act  of  1832.] 

Sec.  1.  No  action  shall  be  brought  whereby  to  charge  any 
executor  or  administrator,  upon  any  special  promise,  to  answer 
any  debt  or  damage  out  of  his  own  estate ;  or  whereby  to  charge 
the  defendant  upon  any  special  promise  to  answer  for  the  debt, 
default,  or  miscarriage  of  another  person ;  or  to  charge  any  person 
upon  any  agreement  made  upon  consideration  of  marriage ;  or 
upon  any  contract  for  the  sale  of  lands,  tenements  or  heredita- 
ments, (or  the  making  any  lease  thereof  for  a  longer  term  than 
one  year)  or  upon  any  agreement  which  is  not  to  be  performed 
within  the  space  of  one  year  from  the  making  thereof,  unless  the 
promise  or  agreement  upon  which  such  action  shall  be  brought, 
or  some  memorandum  or  note  thereof,  shall  be  in  writing  and 
signed  by  the  party  to  be  charged  therewith,  or  some  other  person 
by  him  or  her  thereunto  lawfully  authorized. 

MISSOURI. 

General  Statutes  of  1865.    Chapter  106. 

Sec.  5.  No  action  shall  be  brought  to  charge  any  executor  or 
administrator,  upon  any  special  promise,  to  answer  for  any  debt 
or  damages  out  of  his  own  estate,  or  to  charge  any  person  upon 
any  special  promise  to  answer  for  the  debt,  default,  or  miscarriage 
of  another  person,  or  to  charge  any  person  upon  any  agreement 
made  in  consideration  of  marriage,  or  upon  any  contract  for 
the  sale  of  lands,  tenements,  hereditaments,  or  any  interest 
in  or  concerning  them,  or  upon  any  agreement  that  is  not  to  be 
performed  within  one  year  from  the  making  thereof,  unless  the 
agreement,  upon  which  the  action  shall  be  brought,  or  some 
memorandum  or  note  thereof,  shall  be  in  writing,  and  signed  by 
the  party  to  be  charged  therewith,  or  some  other  person  by  him 
thereto  lawfully  authorized. 

Sec.  G.  No  contract  for  the  sale  of  goods,  wares  and  merchan- 
dise, for  the  price  of  thirty  dollars,  or  upwards,  shall  be  allowed 
to  be  good,  unless  the  buyer  shall  accept  part  of  the  goods  so 


The  Statute  of  Frauds.  53 

sold,  and  actually  receive  the  same,  or  give  something  in  earnest  to 
bind  the  bargain,  or  in  part  payment,  or  unless  some  note  or  mem- 
orandum in  writing  be  made  of  the  bargain,  and  signed  by  the 
parties  to  be  charged  with  such  contract,  or  their  agents  lawfully 
authorized. 

Sec.  7.  No  action  shall  be  brought  to  charge  any  person  upon,  or 
by  reason  of,  any  representation  or  assurance  made  concerning  the 
character,  conduct,  credit,  ability,  trade  or  dealings,  of  any  other 
person,  unless  such  representation  or  assurance  be  made  in  writing, 
and  subscribed  by  the  party  to  be  charged  thereby,  or  by  some  per- 
son thereunto  by  him  lawfully  authorized. 


l^EBKASKA. 

Territorial  Statutes  of  1855.    Part  First. 

857.  Except  when  otherwise  specially  provided,  no  evidence  of 
any  of  the  contracts  enumerated  in  the  next  succeeding  section  is 
competent  unless  it  be  in  writing  and  signed  by  the  party  charged 
or  by  his  lawfully  authorized  agent. 

858.  Such  contracts  embrace: 

1.  Those  in  relation  to  the  sale  of  personal  property  when  no 
part  of  the  property  is  delivered  and  no  part  of  the  price  is  paid ; 

2.  Those  made  in  consideration  of  marriage,  but  not  including 
promises  to  marry ; 

3.  Those  wherein  one  person  promises  to  answer  for  the  debt, 
default,  or  miscarriage  of  another,  including  promises  by  executors 
to  pay  the  debt  of  their  principal  from  their  own  estate ; 

4.  Those  for  the  creation  or  transfer  of  any  interest  in  lands, 
except  leases  for  a  term  not  exceeding  one  year ; 

5.  Those  that  are  not  to  be  performed  within  one  year  from  the 
making  thereof 

859.  The  provision  of  the  first  subdivision  of  the  preceding 
section  does  not  apply  when  the  article  of  personal  property  sold 
is  not  at  the  time  of  the  contract  owncjl  by  the  vendor  and  ready 
for  delivery,  but  labor,  skill,  or  money  are  necessarily  to  be 
expended  in  producing  or  procuring  the  same:  nor  do  those  of 
the  fourth  subdivision  of  said  section  apply  where  the  purchase 
money  or  any  portion  thereof  has  been  received  by  the  vendor,  or 


64  The  Statute  of  Frauds. 

when  the  vendee  with  the  actual  or  implied  consent  of  the  vendor 
has  taken  and  held  possession  thereof,  under  and  by  virtue  of  the 
contract,  or  when  there  is  any  other  circumstance  which  by  the 
law  heretofore  in  force  would  have  taken  a  case  out  of  the  statute 
of  frauds. 

860.  The  above  regulations,  relating  merely  to  the  proof  of 
contracts,  do  not  prevent  the  enforcement  of  those  which  are  not 
denied  in  the  pleadings,  unless  in  cases  where  the  contract  is 
sought  to  be  enforced  or  damages  to  be  recovered  for  the  breach 
thereof  against  some  person  other  than  him  who  made  it. 

NEVADA. 

Territorial  Statutes  of  1861.     Chapter  IX. 

[Continued  in  force  by  the  State  Constitution,  Art.  17,  §  3,  until  altered  or 

repealed  by  the  Legislature.] 

§  57.  Every  contract  for  the  leasing  for  a  longer  period  than  one 
year,  or  for  the  sale  of  any  lands,  or  any  interest  in  lands,  shall 
be  void,  unless  the  contract,  or  some  note  or  memorandum  thereof, 
expressing  the  consideration,  is  in  writing,  and  subscribed  by  the 
party  to  whom  the  lease  or  sale  is  to  be  made,  or  by  his  authorized 
agent. 

Sec.  61.  In  the  following  cases  every  agreement  shall  be  void, 
unless  such  agreement,  or  some  note*or  memorandum  thereof, 
expressing  the  consideration,  be  in  writing,  and  subscribed  by  the 
party  charged  thereAvith :  First.  Every  agreement  that,  by  the 
terms,  is  not  to  be  performed  within  one  year  from  the  making 
thereof.  Second.  Every  special  promise  to  answer  for  the  debt, 
default,  or  miscarriage  of  another.  Third.  Every  agreement, 
promise,  or  undertaking,  made  upon  consideration  of  marriage, 
except  mutual  promises  to  marry. 

Sec.  62.  Every  contract  for  the  sale  of  any  goods,  chattels,  or 
things  in  action,  for  the  price  of  fifty  dollars  or  over,  shall  be 
void,  unless :  First.  A  note  or  memorandum  of  such  contract  be 
made  in  writing,  and  be  subscribed  by  the  parties  to  be  charged 
therewith;  or,  Second.  Unless  the  buyer  shall  accept  or  receive 
part  of  such  goods,  or  the  evidences,  or  some  of  them,  of  such 
things  in  action ;  or.  Third.  Unless  the  buyer  shall,  at  the  time, 
pay  some  part  of  the  purchase  money. 


The  Statute  of  Frauds.  55 

Sec.  63.  "Whenever  goods  shall  be  soid  at  auction,  and  the  auc- 
tioneer shall,  at  the  time  of  sale,  enter  in  a  sale  book  a  memorandum, 
specifying  tlie  nature  and  price  of  the  property  sold,  the  terms  of 
the  sale,  the  name  of  the  purchaser,  and  the  name  of  the  person  on 
whose  account  the  sale  is  made,  such  memorandum  shall  be  deemed 
a  note  of  the  contract  of  sale,  within  the  meaning  of  the  last  section. 

NEW  HAMPSHIRE. 

General  Statutes  of  1867.     Chapter  201. 

Sec.  12.  No  action  shall  be  maintained  upon  a  contract  for  the 
sale  of  land,  unless  the  agreement  upon  which  it  is  brought,  or  some 
memorandum  thereof,  is  in  writing,  and  signed  by  the  party  to  be 
charged,  or  by  some  person  by  him  thereto  authorized  by  writing. 

Sec.  13.  No  action  shall  be  brought  to  charge  an  executor  or 
administrator  upon  a  special  promise  to  answer  damages  out  of 
his  own  estate,  nor  to  charge  any  person  upon  a  special  promise 
to  answer  for  the  debt,  default,  or  miscarriage  of  another,  or  upon 
any  agreement  made  in  consideration  of  marriage,  or  that  is  not 
to  be  performed  within  one  year  from  the  time  of  making  it, 
unless  such  promise  or  agreement,  or  some  note  or  memorandum 
thereof,  is  in  writing,  and  signed  by  the  party  to  be  charged,  or 
by  some  person  by  him  thereto  authorized. 

Sec.  14.  No  contract  for  the  sale  of  goods,  wares,  or  merchandise, 
for  the  price  of  thirty-three  dollars,  or  more,  is  valid,  unless  the 
buyer  accepts  and  actually  receives  part  of  the  property  sold,  or  gives 
something  in  part  payment,  or  in  earnest  to  bind  the  bargain,  or 
unless  some  note  or  memorandum  thereof  is  in  writing,  and  signed 
by  the  party  to  be  charged,  or  by  some  person  by  him  thereto 
authorized. 

I:^EW  JERSEY. 

Nixon's  Digest,  1868,  p.  358.    [Act  of  1794.] 

Sec.  14.  No  action  shall  be  brought,  whereby  to  charge  any 
executor  or  administrator,  upon  any  special  promise,  to  answer 
damages  out  of  his  own  estate ;  or  whereby  to  charge  the  defend- 
ant, upon  any  special  promise,  to  answer  for  the  debt,  default,  or 
miscarriages  of  another  person ;  oy  to  charge  any  person  upon 
any  agreement  made  upon  consideration  of  marriage ;  or  upon  any 
contract  or  sale  of  lands,  tenements,  or  hereditaments,  or  any  inter- 


66  The  Statute  of  Frauds. 

est  in  or  concerning  them ;  or  upon  any  agreement  that  is  not  to 
be  performed  within  the  space  of  one  year  from  the  making 
thereof,  unless  the  agreement  upon  which  such  action  shall  be 
brought,  or  some  memorandum  or  note  thereof,  shall  be  in 
writing,  and  signed  by  the  party  to  be  charged  therewith,  or  some 
other  person  thereunto  by  him  or  her  lawfully  authorized. 

Sec.  15.  No  contract  for  the  sale  of  any  goods,  wares,  and  mer- 
chandise, for  the  price  of  thirty  dollars  or  upwards,  shall  be 
allowed  to  be  good,  except  the  buyer  shall  accept  part  of  the 
goods  so  sold,  and  actually  receive  the  same,  or  give  something  in 
earnest  to  bind  the  bargain,  or  in  part  payment,  or  that  some  note 
or  memorandum  in  writing  of  the  said  bargain  be  made,,  and 
signed  by  the  parties  to  be  charged  by  such  contract,  or  their 
agents  thereunto  lawfully  authorized. 

NEW  YORK. 

Eevised  Statutes.    (Took  effect  January  1,  1830.) 
Part  II.     Chapter  VI.    Title  V. 

Sec.  1.  No  executor  or  administrator  shall  be  chargeable  upon 
any  special  promise  to  answer  damages,  or  to  pay  the  debts  of  the 
testator  or  intestate  out  of  his  own  estate,  unless  the  agreement 
for  that  purpose,  or  some  memorandum  or  note  thereof,  be  in 
writing,  and  signed  by  such  executor  or  administrator,  or  by  some 
other  person  by  him  thereunto  specially  authorized. 

Part  II.     Chapter  VII.    Title  I. 

Sec.  8.  Every  contract  for  the  leasing  for  a  longer  period  than 
one  year,  or  for  the  sale  of  any  lauds,  or  any  interest  in  lands,  shall 
be  void,  unless  the  contract,  or  some  note  or  memorandum  thereof, 
expressing  the  consideration,  be  in  writing,  and  be  subscribed  by 
the  party,  by  whom  the  lease  or  sale  is  to  be  made. 

Sec.  9.  Every  instrument  required  to  be  subscribed  by  any  party, 
under  the  last  preceding  section,  may  be  subscribed  by  the  agent 
of  such  party  lawfully  authorized. 

Sec.  10.  Nothing  in  this  title  contained  shall  be  construed  to 
abridge  the  powers  of  courts  of  equity,  to  compel  the  specific 
performance  of  agreements,  in  cases  of  part  performance  of  such 
agreements. 


The  Statute  of  Frauds.  67 

Part  II,  chapter  VII,  title  II.     (As  amended  by  the  Statute  of  1863.) 
Sec.  2.  In  the  following  cases  every  agreement  shall  be  void, 
unless  such  agreement,  or  some  note  or  memorandum  thereof,' 
be  in  writing,  and  subscribed  by  the  party  to  be  charged  there- 
with: 

1.  Every  agreement  that  by  its  terms  is  not  to  be  performed 
within  one  year  from  the  making  thereof; 

2.  Every  special  promise  to  answer  for  the  debt,  default,  or  mis- 
carriage of  another  person ; 

3.  Every  agreement,  promise  or  undertaking,  made  upon  con- 
sideration of  marriage,  except  mutual  promises  to  marry. 

Sec.  3.  Every  contract  for  the  sale  of  any  goods,  chattels,  or 
things  in  action,  for  the  price  of  fifty  dollars  or  more,  shall  be 
void,  unless: 

1.  A  note  or  memorandum  of  such  contract  be  made  in  writing, 
and  be  subscribed  by  the  parties  to  be  charged  thereby ;  or, 

2.  Unless  the  buyer  shall  accept  and  receive  part  of  such  goods, 
or  the  evidences,  or  some  of  them,  of  such  things  in  action ;  or, 

3.  Unless  the  buyer  shall  at  the  time  pay  some  part  of  the  pur- 
chase money. 

Sec.  4.  "Whenever  goods  shall  be  sold  at  public  auction,  and  the 
auctioneer  shall  at  the  time  of  sale  enter  in  a  sale-book  a  memo- 
randum specifying  the  nature  and  price  of  the  property  sold,  the 
terms  of  the  sale,  the  name  of  the  purchaser  and  the  name  of  the 
person  on  whose  account  the  sale  is  made;  such  memorandum 
shall  be  deemed  a  note  of  the  contract  of  sale  within  the  meaning 
of  the  last  section. 

Sec.  8.  Every  instrument  required  by  any  of  the  provisions  of 
this  title  to  be  subscribed  by  any  party,  may  be  subscribed  by  the 
lawful  agent  of  such  party. 


•The  amendment  of  1863  expnnged  in  this  place  the  words  "eipressmg  the  con- 
Bideratiou." 

8 


58  The  Statute  of  Feauds. 

NOETH  CAROLINA. 

Revised  Code  of  1854.     Chapter  50. 

Sec.  11.  All  contracts  to  sell  or  convey  any  lands,  tenements,  or 
hereditaments,  or  any  interest  in  or  concerning  them,  or  any  slave ; 
and  all  leases  and  contracts  for  leasing  of  land  for  the  purpose  of 
digging  for  gold  or  other  minerals,  or  for  the  purpose  of  mining 
generally,  shall  be  void  and  of  no  effect,  unless  such  contract  or 
lease,  or  some  memorandum  or  note  thereof,  shall  be  put  in 
writing,  signed  by  the  party  to  be  charged  therewith,  or  by  some 
other  person  by  him  thereto  lawfully  authorized,  except,  never- 
theless, leases  and  contracts  for  leases  (other  than  .those  above 
named)  not  exceeding  in  duration  the  term  of  three  years. 

Sec.  15.  No  action  shall  be  brought  whereby  to  charge  an 
executor  or  administrator,  upon  a  special  promise  to  answer 
damages  out  of  his  own  estate,  or  to  charge  any  defendant  upon 
a  special  promise  to  answer  the  debt,  default,  or  miscarriage  of 
another  person,  unless  the  agreement,  upon  which  such  action 
shall  be  brought,  or  some  memorandum  or  note  thereof,  shall  be 
in  writing,  and  signed  by  the  party  charged  therewith,  or  some 
other  person  thereunto  by  him  lawfully  authorized. 

OHIO. 

Revised  Statutes ;  Swan  and  Critclifield's  edition,  1860.    Chapter  47. 

■     [Act  of  1810.] 

Sec.  5.  That  no  action  shall  be  brought  whereby  to  charge  the 
defendant  upon  any  special  promise  to  answer  for  the  debt, 
default,  or  miscarriage  of  another  person;  or  to  charge  any 
executor  or  administrator,  upon  any  special  promise,  to  answer 
damages  out  of  his  own  estate ;  or  to  charge  any  person  upon  any 
agreement  made  upon  consideration  of  marriage,  or  upon  any 
contract  or  sale  of  lands,  tenements,  or  hereditaments,  or  any 
interest  in  or  concerning  of  them ;  or  upon  any  agreement  that  is 
not  to  be  performed  within  the  space  of  one  year  ft-om  the  making 
thereof;  unless  the  agreement  upon  which  such  action  shall  be 
brought,  or  some  memorandum  or  note  thereof,  shall  be  in  writing, 


The  Statute  of  Frauds.  59 

and  signed  by  the  party  to  be  charged  therewith,  or  some  other 
person  thereunto  by  him  or  her  hnvrully  authorized. 

[From  the  note  to  this  chapter  it  would  appear  that  there  is  a 
question  whether  the  whole  of  the  English  statute  is  not  in  force 
in  Ohio  under  an  act  of  1795.] 


OREGON. 

Code  of  Civil  Procedure,  1 862. 

Sec.  775.  In  the  following  cases  the  agreement  is  void,  unless 
the  same,  or  some  note  or  memorandum  thereof  expressing 
the  consideration,  be  in  writing  and  subscribed  by  the  party 
to  be  charged,  or  by  his  lawfully  authorized  agent;  evidence 
therefore  of  the  agreement  shall  not  be  received  other  than  the 
writing,  or  secondary  evidence  of  its  contents,  in  the  cases  pre- 
scribed by  law : 

1.  An  agreement  that,  by  its  terms,  is  not  to  be  performed 
within  a  year  from  the  making  thereof. 

2.  An  agreement  to  answer  for  the  debt,  default,  or  miscarrfage 
of  another. 

3.  An  agreement  by  an  executor  or  administrator  to  pay  the 
debts  of  his  testator  or  intestate  out  of  his  own  estate. 

4.  An  agreement  made  upon  consideration  of  marriage,  other 
than  a  mutual  promise  to  marry. 

5.  An  agreement  for  the  sale  of  personal  property,  at  a  price 
not  less  than  fifty  dollars,  unless  the  buyer  accept  and  receive 
some  part  of  such  personal  property,  or  pay  at  the  time  some  part 
of  the  purchase  money;  but  when  the  sale  is  made  by  auction,  an 
entry  by  the  auctioneer,  in  his  sale-book,  at  the  time  of  the  sale, 
of  the  kind  of  property  sold,  the  terms  of  the  sale,  the  price,  and 
the  names  of  the  purchaser  and  person  on  whose  account  the  sale 
is  made,  is  a  sufficient  memorandum. 

6.  An  agreement  for  the  leasing,  for  a  longer  period  than  one 
year,  or  for  the  sale  of  real  property  or  of  any  interest  therein. 

7.  An  agreement  concerning  real  property,  made  by  an  agent 
of  the  party  sought  to  be  charged,  unless  the  authority  of  the 
agent  be  in  writing. 

Sec.  776.  No  evidence  is  admissible  to  charge  a  person  upon  a 
representation,  as  to   the   credit,  skill,  or  character  of  a  third 


60  The  Statute  of  Frauds. 

person,  unless  such  representation,  or  some  memorandum  thereof, 
be  in  writing,  and  either  subscribed  by,  or  in  the  handwriting  of, 
the  party  to  be  charged. 


PENNSYLVANIA.  < 

Purdon's  Digest,  Brightly's  edition,  p.  497. 
[Act  of  April  26,  1855,  §§  1  and  2.] 

4.  No  action  shall  be  brought  whereby  to  charge  any  executor 
or  administrator,  upon  any  promise  to  answer  damages  out  of  his 
own  estate,  or  whereby  to  charge  the  defendant,  upon  any  special 
promise,  to  answer  for  the  debt  or  default  of  another,  unless  the 
agreement  upon  which  such  action  shall  be  brought,  or  some 
memorandum  or  note  thereof,  shall  be  in  writing,  and  signed  by 
the  party  to  be  charged  therewith,  or  some  other  person  by  him 
authorized. 

5.  This  act  shall  not  go  into  effect  until  the  first  day  of  January 
next ;  or  apply  to  or  affect  any  contract  made  or  responsibility 
incurred  prior  to  that  time ;  or  for  any  contract  the  consideration 
of  which  shall  be  a  less  sum  than  twenty  dollars. 

RHODE  ISLAND. 

Revised  Statutes  of  1857.    Chapter  176. 

Sec.  8.  No  action  shall  be  brought — ■ 

1.  Whereby  to  charge  any  person  upon  any  contract  for  the 
sale  of  lands,  tenements  or  hereditaments,  or  the  making  of  any 
lease  thereof  for  a  longer  time  than  one  year ; 

2.  Whereby  to  charge  any  person  upon  any  agreement  made 
upon  consideration  of  marriage ; 

3.  Whereby  to  charge  any  executor  or  administrator  upon  his 
special  promise  to  answer  any  debt  or  damage  out  of  his  own 
estate ; 

4.  Whereby  to  charge  any  person  upon  his  special  promise  to 
answer  for  the  debt,  default  or  miscarriage  of  another  person ; 

5.  Whereby  to  charge  any  person  upon  any  agreement  which  is 
not  to  be  performed  within  the  space  of  one  year  from  the  making 
thereof; — 


TiiK  Statute  of  Frauds.  G] 

Unless  the  promise  or  agreement  upon  which  such  action  shall 
be  brought,  or  some  note  or  memorandum  thereof,  shall  be  in 
writing,  and  signed  by  the  party  to  be  charged  therewith,  or  by 
some  other  person  by  him  thereunto  lawfully  authorized. 


SOUTH   CAROLINA. 

By  an  act  of  the  Province  of  South  Carolina,  passed  December 
12,  A.  D.  1712,  several  "statute  laws  of  the  Kingdom  of  England 
or  South  Britain,"  therein  copied  at  length,  are  declared  to  be  in 
*•■  as  full  force,  power  and  virtue,  as  if  the  same  had  been  specially 
enacted  and  made  for  this  province,  or  as  if  the  same  had  been 
made  and  enacted  therein  by  any  general  assembly  thereof." 
Among  these  statutes  is  the  29th  Car.  II.  chap.  3. 


TENNESSEE. 

Code  of  1858. 

Sec.  1758.  No  action  shall  be  brought — 

1.  Whereby  to  charge  any  executor  or  administrator,  upon  any 
special  promise,  to  answer  any  debt  or  damages  out  of  his  own 
estate ; 

2.  Whereby  to  charge  the  defendant  upon  any  special  promise 
to  answer  for  the  debt,  default,  or  miscarriage  of  another  person ; 

3.  Whereby  to  charge  any  person  upon  any  agreement  made 
upon  consideration  of  marriage ;  or 

4.  Upon  any  contract  for  the  sale  of  lands,  tenements,  or  here- 
ditaments, or  the  making  any  lease  thereof  for  a  longer  term  than 
one  year ;  or 

5.  Upon  any  agreement  or  contract  which  is  not  to  be  performed 
Avithin  the  space  of  one  year  from  the  making  thereof ; 

Unless  the  promise  or  agreement  upon  which  such  action  shall 
be  brought,  or  some  memorandum  or  note  thereof,  shall  be  in 
writing,  and  signed  by  the  party  to  be  charged  therewith,  or  some 
other  person  by  him  thereunto  lawfully  authorized. 


62  The  Statute  of  Fkauds. 

TEXAS. 

Paschal's  Digest,  1866. 

[Act  of  1840.] 

Art.  3875.  No  action  shall  be  brought,  (1.)  whereby  to  charge 
any  executor  or  administrator,  upon  any  special  promise  to  answer 
any  debt  or  damage  out  of  his  own  estate,  (3.)  or  whereby  to 
charge  the  defendant,  upon  any  special  promise  to  answer  for  the 
debt,  default,  or  miscarriage  of  another  person,  (3.)  or  to  charge 
any  person  upon  any  contract  made  upon  consideration  of  mar- 
riage, (4.)  or  upon  any  contract  for  the  sale  of  lands,  slaves,  tene- 
ments, or  hereditaments,  or  the  making  of  any  lease  thereof  for  a 
longer  term  than  one  year,  (5.)  or  upon  any  agreement  which  is 
not  to  be  performed  within  the  space  of  one  year  from  the  making 
thereof;  unless  the  promise  or  agreement  upon  which  such  action 
shall  be  brought,  or  some  memorandum  thereof,  shall  be  in  writing 
and  signed  by  the  party  to  be  charged  therewith,  or  some  person 
by  him  thereunto  lawfully  authorized. 

VERMONT. 

General  Statutes  of,  1863.    Chapter  66. 

Sec.  1.  No  action  at  law  or  in  equity  shall  be  brought  in  any  of 
the  following  cases : 

1.  To  charge  an  executor  or  administrator  upon  any  special 
promise  to  answer  damages,  out  of  his  own  estate. 

2.  To  charge  any  person,  upon  any  special  promise,  to  answer 
for  the  debt,  default  or  misdoings  of  another.* 

3.  To  charge  any  person,  upon  any  agreement  made  upon 
consideration  of  marriage. 

4.  Upon  any  contract  for  the  sale  of  lands,  tenements  or  here- 
ditaments, or  of  any  interest  in  or  concerning  them. 

5.  Upon  any  agreement  not  to  be  performed  within  one  year 
from  the  making  thereof. 

Unless  the  promise,  contract  or  agreement  upon  which  such 
action  shall  be  brought,  or  some  memorandum  or  note  thereof, 
shall  be  in  writing,  and  signed  by  the  party  to  be  charged  there- 
with, or  by  some  person  thereunto  by  him  lawfully  authorized; 


The  Statute  of  Frauds.  63 

and  if  the  contract  or  agreement  relate  to  the  sale  of  real  estate, 
or  to  any  interest  therein,  such  authority  shall  be  conferred  by 
writing. 

Sec.  2.  No  contract  for  the  sale  of  any  goods,  "wares,  or  mer- 
chandise, for  the  price  of  forty  dollars  or  more,  shall  be  valid, 
unless  the  purchaser  shall  accept  and  receive  part  of  the  goods  so 
Bold,  or  shall  give  something  in  earnest  to  bind  the  bargain,  or  in 
part  payment,  or  unless  some  note  or  memorandum  of  the  bargain 
be  made  in  writing,  and  signed  by  the  party  to  be  charged  thereby, 
or  by  some  person  thereunto  by  him  lawfully  authorized. 

Sec.  3.  No  action  shall  be.  brought  to  charge  any  person  upon 
or  by  reason  of  any  representation  or  assurance,  made  concerning 
the  character,  conduct,  credit,  ability,  trade  or  dealings  of  any 
other  person,  unless  such  representation  or  assurance  be  made  in 
writing,  and  signed  by  the  party  to  be  charged  thereby,  or  by 
some  person  thereunto  by  him  lawfully  authorized. 


VIRGINIA. 

Hevised  Code  of  1860.    Chapter  143. 

Sec.  1.  No  action  shall  be  brought  in  any  of  the  following 
cases: 

1.  To  charge  any  person  upon  or  by  reason  of  a  representation 
or  assurance  concerning  the  character,  conduct,  credit,  ability, 
trade,  or  dealings  of  another,  to  the  intent  or  purpose  tliat  such 
other  may  obtain  thereliy  credit,  money,  or  goods;  or, 

2.  To  charge  any  person,  upon  a  promise  made,  after  full 
age,  to  pay  a  debt  contracted  during  infancy,  or  upon  a  ratifica- 
tion after  full  age  of  a  promise  or  simple  contract  made  during 
infancy ;  or, 

3.  To  charge  a  personal  representative  upon  a  promise  to  answer 
any  debt  or  damages  out  of  his  own  estate;  or, 

4.  To  charge  any  person  upon  a  promise  to  answer  for  the  debt, 
default,  or  misdoings  of  another ;  or, 

5.  Upon  any  agreement  made  upon  consideration  of  marriage ; 
or, 

6.  Upon  any  contract  for  the  sale  of  real  estate,  or  the  lease 
thereof  for  more  than  a  year ;  or, 


64  The  Statute  of  Frauds. 

7.  Upon  any  agreement  that  is  not  to  be  performed  within  a 
year; 

Unless  the  promise,  contract,  agreement,  representation,  assur- 
ance, or  ratification,  or  some  memorandum  or  note  thereof,  be  in 
writing,  and  signed  by  the  party  to  be  charged  thereby,  or  his 
agent.  But  the  consideration  need  not  b  ^  set  forth  or  expressed 
in  the  writing ;  it  may  be  proved  (where  i  consideration  is  neces- 
sary) by  other  evidence. 

Sec.  2.  Any  writing,  to  which  the  person  making  it  shall  affix 
a  scroll  by  way  of  seal,  shall  be  of  the  same  force  as  if  it  were 
actually  sealed. 


WEST  VIEGINIA. 

[By  the  Constitution  of  West  Virginia,  adopted  in  1862,  the 
Statutes  of  Virginia  are  continued  in  force  until  altered  or 
repealed  by  the  Legislature.] 


WISCONSIN. 

Revised  Statutes  of  1838.    Chapter  106. 

Sec.  8.  Every  contract  for  the  leasing  for  a  longer  period  than 
one  year,  or  for  the  sale  of  any  lands,  or  any  interest  in  lands, 
shall  be  void,  unless  the  contract,  or  some  note  or  memorandum 
thereof,  expressing  the  consideration,  be  in  writing,  and  be  sub- 
scribed by  the  party  by  whom  the  lease  or  sale  is  to  be  made. 

Sec.  9.  Every  instrument  required  to  be  subscribed  by  any  party, 
under  the  last  preceding  section,  may  be  subscribed  by  the  agent 
of  such  party,  lawfully  authorized. 

Sec.  10.  Nothing  in  this  chapter  contained  shall  be  construed 
to  abridge  the  powers  of  courts  to  compel  the  specific  performance 
of  agreements  in  cases  of  part  performance  of  such  agreements. 

Chapter  107. 
Sec.  2.  In  the  following  cases,  every  agreement  shall  be  void, 
unless  such  agreement,  or  some  note  or  memorandum  thereof, 
expressing  the  consideration,  be  in  writing  and  subscribed  by  the 
party  charged  therewith : — 


The  Statute  of  Frauds.  65 

1.  Every  agreement  that  by  the  terms  is  not  to  be  performed 
within  one  year  from  the  making  thereof. 

2.  Every  special  promise  to  answer  for  the  debt,  default,  or  mis- 
carriage of  another  person. 

3.  Every  agreement,  promise,  or  undertaking,  made  upon  con- 
sideration of  marriage,  except  mutual  promises  to  marry. 

Sec.  3.  Every  contract  for  the  sale  of  any  goods,  chattels,  or 
things  in  action,  for  the  price  of  fifty  dollars  or  more,  shall  be 
void,  unless — 

1.  A  note  or  memorandum  of  such  contract  be  made  in  writing, 
and  be  subscribed  by  the  parties  to  be  charged  therewith ;  or — 

2.  Unless  the  buyer  shall  accept  and  receive  part  of  such  goods, 
or  the  evidences,  or  some  of  them,  of  such  things  in  action ;  or — 

3.  Unless  the  buyer  shall,  at  the  time,  pay  some  part  of  the 
purchase  money. 

Sec.  4.  Whenever  goods  shall  be  sold  at  public  auction,  and  the 
auctioneer  shall,  at  the  time  of  sale,  enter  in  a  sale-book  a  memo- 
randum, specifying  the  nature  and  price  of  the  property  sold,  the 
terms  of  the  sale,  the  name  of  the  purchaser,  and  the  name  of  tlie 
person  for  whose  account  the  sale  is  made,  such  memorandum 
shall  be  deemed  a  note  of  the  contract  of  sale  within  the  meaning 
of  the  last  section. 

Sec.  8.  Every  instrument  required  by  any  of  the  provisions  of 
this  title  to  be  subscribed  by  any  party,  may  be  subscribed  by  the 
lawful  agent  of  such  party. 

The  foregoing  are  the  enactmenti  now  in  force ;  but,  except  in  Pennsylvania  and 
Louisiana,  the  recent  statutes  in  the  older  States  are  re-enactments,  sometimes  with 
amendments,  of  similar  provisions  contained  in  former  acta 

9 


A  TREATISE 


YALIDITT  OF  VERBAL  AGREEMENTS. 


ESTTRODUCTORY  CHAPTER. 

GENERAL    SURVEY    OF    THE    STATUTE    OF    FRAUDS,    ESPECIALLY 
THOSE  PARTS  OF  IT  "WHICH  RELATE  TO  EXECUTORY  CONTRACTS. 


ARTICLE  I. 


Object,  origin,  history  and  effect  of  the  statnte;  different  opinions  which  have  prevailed  rela- 
tive to  the  spirit  in  which  it  should  be  construed ;  effect  of  such  opinions  upon  the  rules 
determining  the  application  of  the  fourth  and  seventeenth  sections, 

§  1.  Probably  no  beneficial  legislative  enactment  ever 
received  from  the  legal  profession  a  designation  so  well 
calculated  to  mislead  an  unprofessional  person,  or  a  jurist 
under  other  systems,  respecting  its  contents,  as  the  cele- 
brated statute  of  the  twenty  ninth  of  Charles  the  second, 
known  as  the  Statute  of  Frauds  and  Perjuries,  or  more 
commonly,  as  the  Statute  of  Frauds.  To  any  mind  not 
previously  instructed  respecting  its  subject  matter,  those 
terms  suggest  the  idea,  either  that  it  is  a  part  of  the  crimi- 
nal code,  or  that  it  provides  some  new  method  of  detect- 
ing, in  civil  actions,  the  commission  of  the  criminal  acts  at 
which  it  purports  to  have  been  aimed,  and  of  nullifying 
their  consequences.  Nor  is  this  impression  much  weak- 
ened by  the  phraseology  of  its  legal  title,  which  affords 
but  little  evidence  that  the  leading  design  of  its  framers 
was  to  preclude  the  determination  of  the  rights  of  liti- 
gants upon  oral  testimony  merely,  in  certain  cases,  where 
experience  had  shown  that  such  evidence  tended  to  facili- 


68  General  Survey  of  the  Statute. 

tate  the  accomplishment  of  fraud  under  the  forms  of 
law,  and  offered  peculiar  temptations  to  the  commission 
of  perjury. 

§  2.  The  fact  that  the  framers  of  the  act  laid  such  stress 
in  its  title,  and  again  in  its  general  preamble,  and  still 
again  in  the  special  preamble  to  the  nineteenth  section, 
upon  the  consequences  of  the  defects  in  the  law  of  evidence 
which  they  proposed  to  remedy,  to  the  exclusion  of  any 
reference  to  the  direct  purpose  of  the  enactment,  affords 
very  striking  proof  of  the  prevalence  of  the  evils  which  led 
to  its  passage.  At  that  time  the  rules  of  evidence,  derived 
from  a  period  when  to  require  written  proof  in  support 
of  any  description  of  claims,  would  have  been  almost 
tantamount  to  providing  that  such  claims  should  no  longer 
be  enforced  by  legal  proceedings,  imposed  scarcely  any 
limits  to  the  power  and  the  duty  of  the  courts  to  deter- 
mine the  rights  of  litigants,  upon  oral  testimony  merely. 
A  man  might  be  deprived  of  his  real  or  personal  property, 
in  any  appropriate  form  of  action ;  he  might  be  made 
liable  for  the  performance  of  executory  contracts  of  every 
description  ;  and  his  personal  property  might  be  disposed 
of  to  strangers  after  his  death,  {a)  upon  proof,  even  in  the 
most  guarded  cases,  of  equivocal  acts  ;  and,  in  nearly  every 
case,  of  spoken  words  only.  If  such  a  state  of  things  could 
safely  be  permitted  when  the  population  was  scanty,  and 
men  were  comparatively  poor,  simple,  and  ignorant,  it  is 
evident  that  it  opened  the  door  to  great  abuses,  as  popula- 
tion, business,  and  wealth  increased,  and  the  vices,  as  well 
as  the  virtues  of  civilization  became  generally  diffused 
among  the  people.  It  is  therefore  easy  to  understand  that 
false  swearing  had  become  so  common,  that  the  legislature 
felt  itself  urgently  called  upon  ' '  for  the  prevention  of  many 
fraudulent  practices,  which  are  commonly  upheld  by  per- 
jury and  subornation  of  perjury,"  to  revise  the  rules  of 


(a)  The  state  of  the  law  with  respect  to  proof  of  testamentary  disposi- 
tion of  real  property  was  not  much  better.  Roberts  on  Frauds,  pages  304 
to  308. 


General  Survey  of  the  Statute.  G9 

evidence  in  cases  where  tlie  temptation  to  fabricate  a  cause 
of  action  was  the  greatest,  in  consequence  of  the  difficulty 
of  detecting  the  falsity  of  the  oral  testimony  by  which  it 
would  be  sustained.  Indeed,  one  is  tempted  to  believe, 
that  there  was  something  more  than  an  accidental  coin- 
cidence in  the  suppression,  by  the  statute  of  frauds,  of  a 
vast  field  for  the  successful  practice  of  perjury  in  the  civil 
courts,  and  the  scandalous  instances  of  the  same  crime  in 
the  criminal  courts,  which  have  made  the  period  immedi- 
ately succeeding  the  passage  of  the  statute  one  of  the 
most  infamous  in  English  history. 

§  3.  The  origin  of  the  statute  of  frauds  has  been  the 
subject  of  much  curious  inquiry,  opinions  having  greatly 
differed  respecting  the  person  to  whom  belonged  the  credit, 
or,  as  some  enthusiastically  express  it,  the  glory,  of  having 
framed  the  act,  and  most  contributed  to  its  passage. 
Common  reputation  upon  this  point  was  for  a  long  time 
divided  between  Sir  Matthew  Hale,  who  died  before  the 
commencement  of  that  session  of  parliament,  Sir  Francis 
North,  then  Chief  Justice  of  the  Common  Pleas  and  after- 
wards Lord  Guilford,  and  Sir  Lionel  or  Leoline  Jenkins, 
an  eminent  civilian.  And  the  discussion  frequently  turned 
upon  the  internal  evidence  of  its  authorship,  which  the 
statute  itself  affords ;  that  is  to  say,  whether  its  provisions 
are  so  wisely  adapted  to  accomplish  the  ends  proposed, 
and  its  language  so  well  chosen  to  express  clearly  the 
ideas  intended  to  be  conveyed,  that  it  is  reasonable  to 
suppose  it  to  have  been  the  work  of  one  or  all  of  the  great 
jurists  to  whom  its  origin  has  been  attributed.  And  while 
there  has  been  considerable  diversity  of  sentiment  respect- 
ing the  policy  of  some  of  its  provisions,  fiearly  all  com- 
mentators agree  in  condemning  the  awkwardness  and 
incongruity  of  much  of  its  phraseology.  But  this  patent 
defect  should  not  detract  from  the  fame  of  its  original 
draftsman,  or  militate  against  the  argument  that  its 
general  plan  was  the  product  of  a  master  mind.  A  bill 
designed  to  accomplish  the  most  radical  changes  in  the 
law,  which  affected  the  interests  of  every  man  of  substance 


70  Geneeal  Survey  of  the  Statute. 

in  the  kingdom,  could  not  reasonably  be  expected  to  pass 
through  both  Houses  of  Parliament  without  being  sub- 
jected to  numerous  amendments  ;  and  these,  being  doubt- 
less framed  by  different  persons,  some  of  whom  were 
inferior  in  mental  calibre  to  its  original  author,  would 
naturally  mar  its  symmetry  of  expression  as  well  as  of 
design.  And  the  records  of  parliament  show,  that  it  was 
subjected  to  many  alterations  after  its  first  introduction 
into  either  House  ;  and  that  when  its  terms  were  finally 
agreed  upon,  there  was  so  much  doubt  as  to  the  result  of 
the  changes  which  it  contemplated,  that  an  effort  was  made, 
and  nearly  proved  successful,  to  render  it  experimental 
merely,  by  limiting  the  time  during  which  it  should 
operate.  (5) 

(b)  In  the  note  to  Right  v.  Price,  1  Douglas,  241,  A.  D.  1779,  it  is  said  that 
"  the  statute  of  frauds  is  generally  supposed  to  have  been  made  upon  great 
consideration ;  on  an  attentive  perusal,  hovpever,  it  vr'ill  not  appear  to  have 
been  accurately  penned."  See  to  the  same  effect  Buckeridge  v.  Ingram, 
2  Vesey,  662,  and  per  Lawrence,  J.,  in  Wain  v.  Warlters,  5  East,  10.  But 
the  published  journals  of  the  tvs'o  Houses  afford  abundant  evidence  of  the 
anxiety  vs^hich  its  introduction  occasioned,  and  of  the  care  bestowed  upon 
it;  and  fully  account  for  the  patchwork  appearance  which  it  now  presents. 
In  the  House  of  Lords  the  bill  was  read  the  first  time  on  the  17th,  and  the 
second  time  on  the  19th  of  January,  1676;  and  after  the  second  reading  it 
was  referred  to  a  committee,  to  meet  the  next  day,  consisting  of  thirty- 
seven  temporal  and  ten  spiritual  peers,  *'  Lord  Chief  Justice  Common  Pleas, 
Justice  Windham,  Justice  Jones  and  Justice  Scroggs,  to  assist;  "  on  the  6th 
of  March,  the  Earl  of  Dorset  reported,  that  the  committee  "  had  met  several 
times,  and  are  of  opinion  that  the  said  bill  is  fit  to  be  engrossed,  with  some 
amendments,"  which  was  ordered  to  be  done  accordingly,  and  the  next  day 
it  was  read  the  third  time  and  passed.  On  the  same  7th  of  March,  it  was 
sent  to  the  Commons  for  concurrence,  and  read  for  the  first  time  on  the 
13th  of  March,  whereupon  it  was  ordered  to  be  read  the  second  time,  "in 
a  full  house ;  "  the  second  reading  was  on  the  second  day  of  April  following 
(1677),  when  the  bill  was  referred  to  a  committee,  to  meet  the  next  day, 
consisting  of  more  than  fifty  members,  including  the  Master  of  the  Rolls, 
Mr.  Serjeant  Seys,  and  Mr.  Serjeant  Maynard,  to  whom  were  added 
"all  the  members  cf  this  House  that  are  of  the  long  robe;"  on  the  12th 
of  April,  Sir  Charles  Harbord  reported  from  the  committee  "  several  amend- 
ments agreed  hy  the  committee  to  be  made  to  the  bill,  which  were  twice  read, 
and  all  but  the  last  amendment  (which  was  to  make  the  hill  temporary)  were, 
upon  the  question,  agreed,"  and  the  bill  with  the  amendments  was  read  the 


General  Survey  of  the  Statute.  71 

§  4.  But  in  the  various  discussions  wliicli  took  place 
respecting  the  origin  of  tliis  statute,  after  the  generation 
which  framed  it  had  passed  away,  no  one  seems  to  have 
suspected  that  the  "father  of  equity"  had  any  hand  in 
its  composition,  much  less  that  he  was  its  author ;  and 
although  that  fact  must  have  been  known  to  many  of  his 
cotemporaries,  and,  in  truth,  was  announced  by  him  in 
the  Court  of  Chancery,  it  seems  to  have  been  kept  a  secret 
from  the  general  public  for  nearly  one  hundred  and  fifty 
years  after  the  act  took  effect.  It  was  first  revealed  by  the 
publication  of  Mr.  Swanston's  Chancery  Reports,  about 
the  year  1821,  containing,  in  an  appendix  to  the  current 
decisions  of  Lord  Eldon,  transcripts  of  the  notes  of  Lord 
Nottingham,  of  several  cases  decided  before  him  when  he 

third  time,  passed,  and  ordered  to  be  returned  to  the  Lords.  On  the  same 
day  the  amendments  were  agreed  to  in  the  Lords;  and  on  the  IGth  of  April, 
the  King  being  present,  the  bill  was  presented  to  him,  and  received  the  royal 
assent.  Lord  Ellenborough's  opinion  in  the  celebrated  case  of  Wain  v. 
Warlters,  5  East,  10,  A.  D.  1804,  where  it  was  held  that  the  note  or  memo- 
randum in  writing  required  by  the  fourth  section  must  contain  tlie  considera- 
tion, turned  chiefly  upon  the  meaning  of  the  word  "agreement,"  and  in 
defending  his  conclusion,  he  remarked  that  the  statute  was  said  to  have 
been  drawn  by  Lord  Hale,  "one  of  the  greatest  judges  who  ever  sate  at 
Westminster  Hall,  who  was  as  competent  to  express,  as  he  was  able  to  con- 
ceive the  provisions  best  calculated  for  carrying  into  eflfect  the  purposes 
of  that  law."  Lord  Chief  Baron  Gilbert,  in  Whitchurch  v.  Whitchurch, 
Gilbert's  Equity  Reports,  171,  A.  D.  1721,  referring  to  the  provisions  of  the 
statute  on  the  subject  of  wills  of  real  estate,  said  that  "Sir  Matthew  TIale 
and  Sir  Lionel  Jenkins,  who  prepared  this  statute,  chose  to  take  the  plan 
.of  a  Roman  law :  "  or  according  to  the  report  of  the  same  case  in  1  Strange, 
621,  that  it  "was  contrived  by  the  Lord  Chief  Justice  Hale  and  the  most 
learned  men  of  that  time."  But  in  Windham  v.  Chetwynd,  1  Burrow,  418, 
A.  D.  1757,  where  the  question  was,  what  was  the  true  construction  of  the 
word  "credible"  in  the  fifth  section,  Lord  Mansfield  said  that  this  clause, 
which,  considering  the  time  when,  and  the  circumstances  under  which,  men 
were  frequently  called  upon  to  follow  its  directions,  ought  to  have  been 
plain  to  the  meanest  capacity,  "  is  so  loose,  that  there  is  not  a  single  branch 
of  the  solemnity  defined  or  described  with  sufficient  certainty  to  convey  the 
same  idea  to  the  greatest  capacity,"  and  that  the  word  "credible"  must 
have  slipped  in,  without  attracting  attention  to  its  impropriety.  And  refer- 
ring to  the  report  that  the  statute  was  drawn  by  Lord  Hale,  he  added: 
"But  this  is  scarce  probable.     It  was  not  passed  till  after  his  death,  and  it 


72  General  Survey  of  the  Statute. 

was  chancellor,  among  them  that  of  Ash  v.  Ahdy^ 
3  Swanston,  664,  decided  in  1678,  the  year  after  the  statute 
was  enacted.  This  was  a  bill  to  execute  a  parol  agree- 
ment, made  before  the  passage  of  the  act,  but  the  bill 
having  been  filed  afterwards,  the  defendant  demurred, 
"supposing  the  new  act  had  barred  this  suit,"  and  Lord 
Nottingham  overruled  the  demurrer,  on  the  ground  that 
the  statute  was  not  retrospective.  He  added :  ' '  And  I 
said  that  I  had  some  reason  to  know  the  meaning  of  this 
law,  for  it  had  its  first  rise  from  me,  who  brought  the  bill 
into  the  Lords'  House,  although  it  afterwards  received 
some  additions  and  improvements  from  the  judges  and 
the  civilians.  And  the  counsellors  at  the  bar  cited  another 
case  in  the  King' s  Bench  this  very  term,  where  the  same 
point  being  specially  found,  was  so  likewise  adjudged 
upon  argument,  which  I  was  glad  to  hear  of;  but  said 
if  they  had  adjudged  it  otherwise  I  should  not  have 
altered  my  opinion." 

was  brought  in  in  the  common  way,  and  not  upon  any  reference  to  the 
judges."  In  1  W,  Blackstone,  98,  this  remark  is  quoted  thus:  "I  can  never 
conceive,  for  the  reasons  I  formerly  mentioned,  that  this  statute  was  drawn 
by  Lord  Hale,  any  further  than  by,  perhaps,  leaving  some  loose  notes  behind 
him,  which  were  afterwards  unskilfully  digested."  The  evidence,  upon 
which  rests  Sir  Francis  North's  claim  to  its  authorship,  consists  mainly  of 
the  statement  of  his  brother,  Roger  North,  who  says,  in  the  Life  of  Lord 
Keeper  Guilford,  volume  1,  page  109,  that  the  Lord  Keeper  had  a  great  hand 
in  the  statute  of  frauds  and  perjuries.  "But,"  he  continues,  "at  that  time 
the  Lord  Chief  Justice  Hale  had  the  pre-eminence,  and  was  chief  in  the 
fixing  that  law,  although  the  urging  part  lay  upon  him.  and  I  have  reason, 
to  think  it  had  the  first  spring  from  his  lordship's  motion."  Mr.  John 
William  Smith  (author  of  the  "Leading  Cases"),  in  his  lectures  on  the  Law 
of  Contracts,  page  32,  says:  "It  is  said  to  have  been  the  joint  production 
of  Sir  Matthew  Hale,  Lord  Keeper  Guilford,  and  Sir  Leoline  Jenkins,  an 
eminent  civilian.  The  great  Lord  Nottingham  used  to  say  of  it,  '  that  every 
line  was  worth  a  subsidy'"  (about  50,000Z.);  "and  it  might  now  be  said, 
with  truth,  that  every  line  has  cost  a  subsidy;  for  it  is  universally  admitted 
that  no  enactment  of  any  legislature  ever  became  the  subject  of  so  much 
litigation.  Every  line,  and  almost  every  word  of  it,  has  been  the  subject  of 
anxious  discussion,  resulting  from  the  circumstances  that  the  matters  which 
its  provisions  regulate,  are  those  which  are  of  every  day  occurrence  in  the 
course  of  our  transactions  with  one  another." 


General  Survey  of  the  Statute.  73 

§  6.  The  subject  of  this  work  restricts  us  to  the  consid- 
eration of  the  fourth  and  the  seventeenth  sections  of  the 
statute,  which  are  the  only  parts  of  it  relating  to  verbal 
agreements,  properly  so  called  ;  for  although  leases,  trusts, 
land  some  of  the  other  subjects  of  its  provisions,  may  in 
one  sense  be  called  agreements,  inasmuch  as  tliey  gene- 
rally arise  out  of  a  contract,  that  particular  feature  of 
them  very  rarely  presents  any  question  for  the  considera- 
tion of  the  court  as  respects  the  application  of  the  statute 
thereto,  unless  they  are  brought  within  one  of  these  sec- 
tions by  some  peculiarity  of  the  facts.  Provisions  gene- 
rally corresponding  to  these  sections  have  now  the  force 
of  law  in  all  of  the  United  States,  although  in  a  few  of 
them  the  seventeenth  section  has  not  been  re-enacted,  and 
some  of  the  descriptions  of  contracts  enumerated  in  the 
fourth  have  been  omitted.  They  were  also  re-enacted  in 
Ireland  in  the  seventh  year  of  king  William  the  third, 
and  corresponding  legislative  provisions  are  in  force  in 
most,  and  perhaps  all  of  the  British  dependencies.  Addi- 
tional enactments  have  from  time  to  time  been  passed  by 
parliament,  and  by  the  legislatures  of  some  of  the  United 
States,  whereby  a  writing  is  made  necessary  to  the  crea- 
tion of  other  kinds  of  liabilities ;  but  these  vary  consid- 
erably in  the  different  localities  ;  so  that  for  the  purpose 
of  a  comprehensive  discussion  of  the  rules  of  law,  whereby 
the  validity  of  verbal  agreements  is  tested,  in  countries 
where  the  common  law  prevails,  it  is  necessary  only  to 
examine  the  principles  by  which  the  application  of  these 
sections  is  regulated.  And  it  results  from  the  fact  that 
the  common  law  enables  all  executory  agreements  to  be 
created  and  proved  without  writing,  that  in  cases  not 
included  within  these  sections,  and  where  no  local  statute 
expressly  or  by  implication  establishes  a  different  rule,  a 
verbal  agreement  is  always  sufficient  to  enable  the  plaintiff 
to  recover. (c)  Thus  a  verbal  submission  to  arbitration  is 
good,  and  a  verbal  agreement  to  arbitrate  entitles  a  party 

(c)  Per  Selden  J.  in  Pratt  v.  Hudson  River  Railroad  Company,  21  New 
York,  309. 

10 


74  General  Survey  of  the  Statute. 

to  maintain  an  action  thereon,  when  the  matter  in  dispute 
is  of  such  a  character  that  the  statute  of  frauds  permits  it 
to  be  proved  by  oral  testimony.  ((^)  And  although  a  con- 
trary opinion  is  to  be  found  in  some  works  of  highly 
reputable  authority,  it  is  believed  that  in  the  countries 
governed  by  the  common  law,  a  verbal  contract  of  marine 
or  fire  insurance  is  valid.  It  has  been  held  in  several  cases 
in  the  United  States  that  an  action  at  law  may  be  main- 
tained ujDon  such  a  contract,  even  where  there  had  been 
no  actual  payment  of  the  premium,  but  only  a  verbal,  or 
even  an  implied  agreement  to  pay  it.(e) 

(d)  Kyd  on  Awards,  page  10;  Martin  v.  Chapman,  1  Alabama,  278;  Byrd 
V.  Odem,  9  id.  755;  Valentine  v.  Valentine,  2  Barbour's  Chancery  (New- 
York),  430;  Titus  v.  Scantling,  4  Blackford  (Indiana),  89;  Walters  v.  Mor- 
gan, 2  Cox's  Chancery,  369 ;  Winne  v.  Elderkin,  1  Chandler  (Wisconsin), 
219;  Ditter  V.  Wellington,  1  Hill  (New  York),  319;  Smith  v.  Douglas,  16 
Illinois,  34;  Griggs  v.  Seeley,  8  Indiana,  264;  Houghton  v.  Houghton,  37 
Maine,  72 ;  French  v.  New,  28  New  York,  147 ;  McMuUen  v.  Mayo,  8 
Smedes  and  Marshall  (Mississippi),  298;  Woods  v.  Page,  37  Vermont,  252: 
Wells  V.  Lain,  15  Wendell  (New  York),  99. 

(e)  In  Millar  on  Insurance,  30,  it  is  said  that  the  importance  of  the  con- 
tract of  insurance,  and  the  singularity  of  the  obligations  which  it  is  intended 
to  create,  have,  in  all  commercial  states,  rendered  a  deed  in  writing  essential 
to  its  validity.  In  Duer  on  Insurance,  §  5,  the  learned  author,  while  admit- 
tinsj  that  by  the  common  law  an  unwritten  contract  of  insurance  is  sufficient, 
expresses  an  opinion  that  the  usage  of  a  written  contract  has  prevailed  so 
long,  that  it  has  acquired  the  force  of  law,  and  he  doubts  whether  an  action 
could  be  sustained  upon  one  which  was  oral.  But  the  rule  is  settled  the 
other  way  upon  the  American  authorities.  In  Audubon  v.  The  Excelsior 
Insurance  Company,  27  New  York,  216,  A.  D.  1863,  the  plaintiflf's  testator 
sent  five  sets  of  "  Audubon's  Quadrupeds,"  in  sheets,  to  a  bookbinder's  to  be 
bound ;  and  in  the  afternoon  of  the  same  day,  being  Saturday,  he  sent  a  per- 
son in  his  employment  to  the  defendant's  office,  to  effect  an  insurance  upon 
them  for  a  specified  sum.  for  one  month.  The  messenger  applied  to  the  sec- 
retary, giving  him  all  the  necessary  particulars;  and  the  secretary  assented 
and  said  that  he  would  furnish  a  policy  on  the  Monday  morning.  No  amount 
of  premium  was  mentioned;  but  there  was  a  reference  in  the  conversation 
to  a  policy  which  had  been  previously  issued  by  the  same  company,  upon 
other  sets  of  the  work,  at  the  same  place,  and  for  the  same  time.  The  prop- 
erty was  destroyed  by  fire  on  the  intervening  Sunday.  It  was  held  that 
the  jury  might  infer  a  present  contract  to  insure  at  the  former  rate  of  premium 
and  to  furnish  the  written  evidence  of  it  on  Monday,  and  a  judgment  for 


Geiteral  Survey  of  the  Statute.  76 

§  6.  In  the  course  of  the  decisions  under  these  two 
sections,  now  extending  over  almost  two  centuries,  many 
very  perplexing  questions  have  arisen,  and  several 
propositions  have  been  from  time  to  time  laid  down, 
as  law,  resulting  in  the  exclusion  from  the  operation 
of  the  statute  of  many  cases,  which,  as  it  is  now  im- 
possible to  doubt,  are  within  its  terms  and  intent.  As 
many  of  these  propositions  depend  upon  such  unsat- 
isfactory reasoning  that  they  may  almost  be  called  arbi- 
trary, the  rulings  of  the  courts  thereunder  have  fluctuated 
greatly,  thus  leading  to  distressing  uncertainty  and  to 
much  conflict  of  authority.  The  inconveniences  resulting 
therefrom  have  been  so  great  that  some  doubts  have  been 
expressed,  especially  of  late  years,  and  in  the  United 
States,  whether  the  efffect  of  those  sections  of  the  statute 
has  been,  upon  the  whole,  beneficial.  (/ )  But  many  of  these 

the  plaintifif  rendered  upon  a  verdict  was  affirmed.  And  see  Mobile,  etc., 
Insurance  Company  v.  McMillan,  31  Alabama,  711 ;  Post  v.  JEtna,  Insurance 
Co.,  43  Barbour  (New  York),  351 ;  Kelley  v.  Commonwealth  Ins.  Co.,  10 
Bosworth  (New  York),  82 ;  Union,  etc.,  Ins.  Co.  v.  Commercial,  etc.,  Ins. 
Co.,  2  Curds  Circuit  Court,  524;  S.  C,  19  Howard  (U.  S.),  318;  New  Eng- 
land, etc.,  Co.  V.  Robinson,  25  Indiana,  53G;  Trustees  First  Baptist  Church 
V.  Brooklyn  Ins.  Co.,  19  New  York,  305;  Hamilton  v.  Lycoming  Ins.  Co., 
5  Pennsylvania  (Barr),  339. 

(/)  Chief  Justice  Parker,  in  Holmes  v.  Knights,  10  New  Hampshire,  176, 
said  that  it  might  well  bo  doubted  whether  the  second  clause  of  the  fourth 
section  of  the  statute  has  not  promoted  more  fraud  than  it  has  prevented. 
Mr.  Rawle,  in  his  notes  to  Smith's  Lectures  on  Contracts,  third  American 
edition,  published  in  1853,  expressed  his  satisfaction  because  the  State 
of  Pennsylvania  had  never  re-enacted  the  fourth  section  (page  1 1 8) ;  and 
Mr.  Hare  concluded  a  long  and  able  note  to  Birkmyr  v.  Darnell,  in 
1  Smith's  Leading  Cases,  fourth  American  edition,  332,  published  in  1852, 
■with  the  expression  of  an  opinion  that  less  inconvenience  had  resulted  in 
Pennsylvania  from  its  absence  from  the  statute  book,  than  would  have  been 
caused  by  its  presence,  and  of  a  belief  that  the  necessity  for  that  section  has 
passed  away  with  the  change  of  society.  He  added,  that  "  all  that  is  prac- 
tically useful  in  its  provisions  at  the  present  day  may  perhaps  be  attained 
by  providing  that  promises  for  the  debt  of  another,  in  consideration  solely 
of  forbearance  to  bring  suit,  should  be  invalid  unless  reduced  to  writing." 
But  the  current  of  opinion  seems  to  have  run  in  the  contrary  direction  to 
that  of  those  able  jurists;  for  in  1855  the  legislature  of  Pennsylvania 
adopted  that  portion  of  the  fourth  section  against  which  their  remarks  were 
particularly  directed. 


76  General  Suevey  of  the  Statute. 

evil  consequences  are  directly  traceable  to  departures 
from  the  spirit  and  meaning  of  the  enactment,  rather  than 
to  any  lack  of  wisdom  in  its  provisions,  or  any  real  diffi- 
culty in  determining  the  true  construction  of  its  lan- 
guage. Most  of  the  objectionable  rules  referred  to  had 
their  origin  in  cases  decided  in  England,  within  a  period 
of  time  which  may  approximately  be  described  as  the  first 
of  the  two  centuries  elapsed  since  the  enactment  of  the 
statute ;  and  where  they  have  not  been  modified  by  the 
action  of  the  legislature,  they  have  generally  been  aban- 
doned by  the  courts  themselves,  in  consequence  of  a 
change  in  the  views  of  the  judges  respecting  the  spirit  in 
which  the  statute  ought  to  be  construed.  This  change 
became  quite  apparent  towards  the  latter  part  of  the 
eighteenth  and  the  beginning  of  the  nineteenth  century, 
soon  after  the  time  when  the  United  States  came  into 
existence  as  a  separate  nation  ;  and  the  same  general 
views  have  prevailed  ever  since  in  England,  (p')    But  the 

((/)  In  the  case  of  Proctor  v.  Jones,  2  Carrington  and  Payne,  532,  A.  D. 
1826,  -which  arose  under  the  seventeenth  section.  Best,  C.  J.,  said:  "The 
statute  of  frauds  and  the  statute  of  limitations  were  both  so  much  objected 
to,  at  the  time  when  they  were  passed,  that  the  judges  appeared  anxious  to 
get  them  off  the  statute  book ;  but  in  later  times  they  have  become  desirous 
to  give  them  their  full  effect.  I  think  the  statute  of  frauds  is  a  good  and 
wholesome  statute.  In  other  countries,  contracts  are  made  in  writing." 
And  see  also  his  remarks  in  Howe  v.  Palmer,  3  Barnewall  and  Alderson, 
321,  A.  D.  1820.  It  is  quite  noticeable  that  the  expressions  of  sympathy 
with  the  object  ot  these  section*  of  the. statute,  began  to  be  universal  with 
the  judges  about  the  commencement  of  the  present  century.  Lord  Kenyon 
on  several  occasions  expressed  his  approbation  of  them.  In  Chater  v. 
Becket,  7  Term  Eeports,  201,  A.  D.  1797,  which  arose  under  section  4,  he 
said:  "I  lament  extremely  that  exceptions  were  ever  introduced  in  constru- 
ing the  statute  of  frauds;  it  is  a  very  beneficial  statute,  and  if  the  courts  had 
at  first  abided  by  the  strict  letter  of  the  act,  it  would  have  prevented  a  mul- 
titude of  suits  which  have  since  been  brought."  See  also  his  remarks  in 
Rucker  v.  Cammeyer,  1  Espinasse,  105,  A,  D.  1794;  and  in  Chaplm  v, 
Rogers,  1  East,  194,  A.  D.  1801,  both  under  the  17th  section.  Grose,  J., 
expressed  the  same  opinion  in  Cooper  v.  EUston,  7  Term  Reports,  16,  A.  D. 
1796.  Sir  James  Mansfield,  Chief  Justice  of  the  Common  Pleas,  m  Anstey 
V.  Harden,  4  Bosanquet  and  Puller  (1  New  Reports),  124,  A.  D.  1804,  said 
that,  upon  general  principles,  no  one  could  wish  to  restrain  the  operation  of 


General  Survey  of  the  Statute.  Tt 

courts  in  the  United  States  seem  to  have  been  deeply 
imbued,  at  the  commencement  of  the  independent  exist- 
ence of  this  country,  with  tlie  spirit  which  was  then 
disappearing  in  the  mother  country ;  and  fortified  by 
English  precedents,  they  pushed  on  for  many  years  after 
the  reaction  had  taken  place  there,  in  the  direction  of 
restricting  the  operation  of  the  statute,  and  even  devised 
new  propositions  for  the  exclusion  of  cases  from  its  pro- 
visions. Many  of  these  doctrines,  which  were  unable  to 
endure  the  test  of  time,  have  since  yielded  to  the  more 
liberal  and  enlightened  views,  respecting  the  statute, 
which  now  prevail  here  also  ;  but  some  have  become  forti- 
fied by  so  many  precedents,  that  their  complete  extinction 
has  not  everywhere  been  accomplished.  And  as  the  effects 
of  the  reaction  are  not  yet  fully  developed,  we  are  still  in 
an  uncertain,  and,  perhaps,  in  a  transition  state,  with 
respect  to  many  principles  of  constant  practical  applica- 
tion ;  whence  results  a  confusion,  which,  in  some  classes 
of  cases,  is  almost  chaotic. 

§  7.  But  out  of  this  evil  much  good  has  also  sprung  ; 
for  the  reaction  having  taken  place  here  later  than  in 
England,  it  found  the  general  principles  against  which 
it  operated  much  more  developed  than  they  had  ever 
been  in  that  country ;  and  out  of  this  development  have 

the  statute.  Lord  EUenborough's  remarks  in  Wain  v.  Warlters,  5  East,  10, 
A.  D.  1804,  have  already  been  quoted.  And  see  per  Buller,  J.,  Brodie  v. 
St.  Paul,  1  Vesey,  333,  A.  D.  1791.  Lord  Eldon,  in  Cooth  v.  Jackson,  6 
Vesey,  37,  A.  D.  1801,  in  discussing  a  question  arising  under  the  fourth 
section,  said :  "  I  feel  all  the  disinclination,  which  has  been  lately  expressed, 
and  strongly  expressed  in  many  cases,  to  carry  what  may  be  called  the 
struggles  of  courts  of  justice  to  take  cases  out  of  the  reach  of  that  statute 
further  than  they  have  been  carried."  Lord  Tenterden  repeatedly  expressed 
his  opinion,  in  cases  arising  under  both  the  fourth  and  seventeenth  sections, 
that  the  statute  of  frauds  was  a  wise  and  beneficial  enactment,  and  should 
be  hberally  construed.  Howe  v.  Palmer,  3  Barnewall  and  Aldt-rson,  321, 
A.  D.  1820;  Tempest  v.  Fitzgerald,  id.  G80;  Baldey  v.  Parker,  2  Barne- 
wall and  Cresswell,  40,  A.  D.  1823.  See  also  per  Bayley,  J.,  in  Saunders  v. 
Wake6eld,  4  Barnewall  and  Alderson,  595,  A.  D.  1821;  and  Carter  v. 
Toussaint,  5  Barnewall  and  Alderson,  855,  A.  D.  1822. 


78  General  Survey  of  the  Statute. 

sprung  many  really  sound  and  valuable  rules  of  con- 
struction of  the  statute,  which  have  held  their  ground  by 
common  consent  against  the  receding  tide,  and  are  now 
well  settled  rules  of  American  jurisprudence,  although 
they  are  known  but  imperfectly,  or  not  at  all,  in  West- 
minster Hall.  One  of  these  principles  has  recently 
been  borrowed  from  us,  and  appears  to  be  now  recog- 
nized in  England  as  a  sound  rule  of  law,  although  when 
it  was  first  settled  here,  it  was  supposed  to  be  in  direct 
conflict  with  the  result  of  the  English  cases  \{7i)  and  it 
is  believed  that  the  omission  of  the  English  courts  to 
recognize  several  other  principles,  which  stand  here 
on  a  very  solid  foundation,  proceeds  from  the  fact  that 
the  questions  have  never  been  directly  raised  before 
them.  And  while  it  is  impossible  to  deny,  that  in  many 
respects  the  exclusion  from  the  operation  of  the  statute, 
of  cases  arising  under  these  sections,  and  clearly  within 
their  literal  meaning,  has  been  pushed  much  further  than 
a  correct  view  of  its  spirit  and  policy  will  justify,  it  is 
equally  true  that  the  indiscriminate  condemnation  of  rules 
having  the  eifect  to  restrict  the  broad  language  of  the 
statute  is  unwise  and  indefensible.  For  the  looseness  and 
incongruity  of  expression,  of  which  so  many  complaints 
have  been  made,  in  cases  arising  under  other  parts  of  the 
statute,  is  equally  characteristic  of  these  sections.  Mr. 
Justice  WHmot  remarked,  in  a  case  arising  under  the 
seventeenth  section, (^)  that  "had  the  statute  of  frauds 
always  been  carried  into  execution  according  to  the  letter, 
it  would  have  done  ten  times  more  mischief  than  it  has  done 
good,  by  protecting  rather  than  by  preventing  frauds." 
And  the  remark  is  also  eminently  true  of  the  fourth  sec- 
tion also,  as  will  appear  from  numerous  instances  con- 
tained in  the  following  pages,   where  the  letter  of    the 

(A)  We  refer  to  the  rule  that  the  guaranty  of  a  factor  acting  under  a  del 
credere  commission  is  not  within  the  statute  of  frauds,  Couturier  v.  Hastie, 
8  Exchequer,  40,  A.  D.  1852;  approved  in  Wickham  v.  Wickham,  2  Kay 
and  Johnson,  478,  A.  D.  1855.  The  subject  will  be  fully  discussed  in  the 
second  article  of  the  eighteenth  chapter. 

(i)  Simon  v.  Motivos,  1  W.  Blackstone,  599,  A.  D.  1766. 


General  Survey  of  the  Statute.  79 

enactment  has  been  made  to  yield  to  its  obvious  intent, 
from  the  consideration  that  the  case  was  not  within  the 
mischiefs  against  which  it  was  aimed,  and  a  literal  con- 
struction would  lead  to  injustice  and  inconveniences 
which  the  legislature  could  not  have  meant  to  create. 

ARTICLE  11. 

The  statute  Bnperadda  the  necessity  of  a  ■writing,  to  the  common  law  requirement  that 
every  contract  mnst  be  founded  upon  a  sufficient  consideration. 

§  8.  It  was  remarked,  in  the  foregoing  article,  that  the 
leading  object  of  the  statute  of  frauds  was  to  exclude  oral 
testimony,  as  a  means  by  which  the  rights  of  litigants 
could  be  determined,  in  certain  cases,  where  experience 
had  shown  that  it  was  peculiarly  liable  to  abuse ;  and 
with  respect  to  the  cases  included  in  the  fourth  and  seven- 
teenth sections,  such  was  exclusively  its  object  and  effect. 
At  the  time  when  the  statute  went  into  operation,  there 
was  no  rule  of  the  common  law  requiring  any  executory 
contract  to  be  manifested  by  a  writing,  or  any  other  evi- 
dence than  that  of  mere  words ;  and  we  are  not  aware 
that  any  such  rule  ever  existed  in  England,  although  an 
ingenious  and  learned  writer  on  the  law  of  evidence  has 
collated  the  substance  of  some  early  but  then  obsolete 
statutes,  whereby  certain  solemnities  were  rendered  neces- 
sary to  tlie  actual  transfer  of  the  title  to  personal  prop- 
erty, (a) 

(a)  Professor  Greenleaf  says  that  "  this  statute  introduced  no  new  principle 
into  the  law ;  it  was  new  in  England  only  in  the  mode  of  proof  which  it 
required.  Some  protective  regulations,  of  the  same  nature,  may  be  found 
in  some  of  the  early  codes  of  most  of  the  Northern  nation?,  as  well  as  in 
the  laws  of  the  Anglo-Saxon  princes;  the  prevention  of  frauds  and  perjuries 
being  sought,  agreeably  to  the  simplicity  of  those  unlettered  times,  by 
requiring  a  certain  number  of  witnesses  to  a  valid  sale,  and  sometimes  by 
restricting  such  sales  to  particular  places.  In  the  Anglo-Saxon  laws,  such 
regulations  were  quite  familiar ;  and  the  statute  of  frauds  was  merely  the 
revival  of  obsolete  provisions,  demanded  by  the  circumstances  of  the  times, 
and  adapted,  in  a  new  mode  of  proof,  to  the  conditions  and  habits  of  the 
trading  community."  These  remarks  are  followed  up  with  an  abstract  of 
several  of  the  laws  of  the  Saxon  Kings  requiring  witnesses  to  render  sales 


80  General  Survey  of  the  Statute. 

§  9.  But  although  it  would  seem  very  clear  upon  prin- 
ciple that  the  statute  left  the  common  law  untouched  in  all 
respects,  except  where  it  expressly  provided  a  different 
rule,  yet  for  a  long  time  after  its  passage  the  idea  was 
entertained  by  many  eminent  English  jurists,  that  it  had 
the  indirect  effect  to  create  a  new  species  of  contracts, 
intermediate  between  specialties  and  parol  agreements, 
which  so  far  partook  of  the  nature  of  the  former,  that  a 
consideration  was  not  necessary  where  the  contract  had 
been  reduced  to  writing,  so  as  to  satisfy  the  requirements 
of  the  statute.  And  it  is,  perhaps,  the  most  remarkable 
circumstance  connected  with  its  history,  that  a  question 
of  su(;h  great  importance,  and  which  must  have  arisen 
very  frequently  in  practice,  should  have  remained  unset- 
tled for  a  century  after  the  statute  took  effect.  As  late  as 
the  year  1765,  in  the  case  of  Pillans  v.  Van  Mierop,  3 
Burrow,  1663,  we  find  no  less  a  man  than  Lord  Mansfield 
intimating  an  opinion  that  there  was  no  such  thing  as  a 
nudum  pactum  in  writing  ;  because,  he  said,  "the  ancient 
notion  about  want  of  consideration  was  for  the  sake  of 
evidence  only,  for  when  it  was  reduced  to  writing,  as  in 
covenants,  specialties,  bonds,  etc.,  there  was  no  objection 
to  the  want  of  consideration.  And,"  he  added,  "the 
statute  of  frauds  proceeded  upon  the  same  principle." 
In  the  sahie  case  Mr.  Justice  WHmot  entered  into  quite  an 
extended  argument  to  the  same  effect,  concluding  by 
saying,  "  I  cannot  find  that  a  nudum  pactum  evidenced 
by  writing  has  been  ever  holden  bad,  and  I  should  think 
it  good,  though  where  it  is  merely  verbal  it  is  bad."  These 
remarks  proved  to  be  unnecessary  to  the  decision  of  the 
case,  for  Lord  Mansfield  ultimately  concluded  that  the 
question  did  not  arise,  because  the  particular  promise 


valid,  and  an  enactment  of  William  the  Conqueror  to  the  same  effect.  Some 
of  these  laws  also  render  it  necessary  that  sales  should  take  place  in  cities. 
But  there  is  nothing  in  any  of  them  prescribing  any  particular  solemnity  or 
formality  for  any  species  of  executory  contracts;  although  these  were  simi- 
larly provided  for  in  the  Roman  law,  and  in  several  laws  of  continental 
countries.     1  Greenleaf 's  Evidence,  tenth  edition,  note  to  §  262. 


General  Survey  of  the  Statute.  81 

before  the  court  was  a  mercantile  conti-act,  and  no  objec- 
tion had  been  takcni  at  tlie  trial  on  the  ground  of  want  of 
consideration  ;  and  the  other  judges  concluded  that  there 
was  in  fact  a  sufficient  consideration  for  the  promise.  But 
so  decided  an  expression  of  opinion,  from  jurists  of  such 
acknowledged  eminence,  could  not  fail  to  raise  grave 
doubts  upon  this  important  question,  which  were  not  set 
at  rest  until  the  df^cision  of  the  House  of  Lords  to  the 
contrar}',  in  a  case  where  apparently  the  suggestions 
thrown  out  in  Pillans  v.  Van  Mierop  had  been  adopted 
as  the  true  rule  of  law,  by  the  judgment  of  the  Court  of 
King' s  Bench. 

§  10.  The  case  to  which  we  allude  is  Rann  v.  Hughes, 
decided  A.  D.  1778,  and  reported  in  4  Brown's  Parlia- 
mentary Cases,  27,  where  the  pleadings  and  arguments  of 
counsel  are  given  at  great  length,  but  without  any  state- 
ment of  the  reasoning  upon  which  the  decision  proceeded  ; 
but  the  latter  is  to  be  found  in  a  note  to  another  case 
reported  in  7  Term  Reports,  350.  The  action  was  brought 
in  the  King's  Bench,  where  the  plaintiffs  declared  as 
executors  against  the  defendant,  Isabella  Hughes,  indi- 
vidually. The  declaration  alleged  (in  brief)  that  one 
John  Hughes  was  indebted  to  the  plaintiffs'  testator  in  a 
specified  sum  ;  that  he  died  possessed  of  goods  the  value 
of  which  largely  exceeded  the  amount  of  the  debt ;  that 
administration  thereof  had  been  granted  to  the  defendant ; 
that  the  plaintiffs  were  executors  of  the  creditor ;  "by 
reason  of  which  premises,"  the  defendant,  as  administra- 
trix, became  liable  to  pay  to  the  plaintiffs,  as  executors, 
the  said  sum,  etc.,  "and  being  so  liable,  she,  the  said 
Isabella,  in  consideration  thereof,  afterwards,  etc.,  under- 
took and  to  the  said  John  and  Arthur  then  and  there 
faithfully  promised  to  pay  them  the  said  sum  of  money, 
etc.,  when  she,  the  said  Isabella,  should  be  thereunto 
afterwards  requested."  The  defendant  pleaded,  first,  non 
assumpsit ;  secondly,  plene  administravit ;  thirdly,  plene 
administravit  praeter,  etc.,  and  a  bond  debt  sufficient  to 
absorb  the  balance.  The  plaintiffs  replied  to  tlie  pleas ; 
11 


82  Geisteral  Survey  of  the  Statute. 

and  at  the  trial  the  jury  found  a  verdict  for  the  plaintiffs 
on  the  first  issue,  and  for  the  defendant  on  the  second. 
A  motion  for  a  new  trial  (in  the  King' s  Bench)  was  denied, 
and  a  general  judgment  entered  up  against  the  defendant. 
Upon  a  writ  of  error  in  the  Exchequer  Chamber,  the  judg- 
ment was  reversed,  and  from  the  judgment  of  reversal  a 
writ  of  error  was  brought  in  the  House  of  Lords.  After 
very  full  argument  upon  all  the  points,  the  following 
question  was  put  to  the  judges,  namely,  "whether  suffi- 
cient matter  appears  upon  this  declaration,  to  warrant, 
after  verdict,  the  judgment  entered  up  against  the  defend- 
ant in  her  personal  capacity  ? "  In  answer  to  which,  Lord 
Chief  Baron  Skynner  delivered  the  opinion  of  the  judges 
in  extenso,  referring  in  detail  to  the  remarks  of  the  Chief 
Justice  and  Mr.  Justice  Wilmot  in  the  preceding  case, 
and  to  another  case,  not  reported,  where  the  same  doc- 
trines were  advanced.  With  respect  to  the  idea  that  a 
writing  rendered  a  contract  valid  without  a  consideration, 
he  said,  that  although  the  presumption  was,  after  verdict, 
that  the  promise  was  in  writing,  it  would  not  help  the 
plaintiffs ;  because  the  law  of  England  recognized  only 
two  species  of  contracts,  specialties  and  parol  agreements, 
that  there  was  no  intermediate  class,  and  a  written  con- 
tract not  under  seal  was  merely  a  parol  agreement,  the 
consideration  of  which  must  be  averred  and  proved  ;  that 
the  consideration  for  the  defendant's  promise,  alleged  in 
this  declaration,  was  insufficient  in  law,  as  it  consisted 
merely  of  an  indebtedness  of  the  defendant  in  another 
right,  without  forbearance  or  any  other  act  which  amounted 
in  law  to  a  valuable  consideration.  In  this  opinion  the 
other  judges  concurred  ;  and  the  judgment  of  the  Exche- 
quer Chamber  was  accordingly  affirmed.  (&) 


(b)  The  following  are  the  material  portions  of  this  opinion  :  "  It  is  undoubt- 
edly true  that  every  man  is  by  the  law  of  nature  bound  to  fulfil  his  engage- 
ments. It  is  equally  true  that  the  law  of  tliis  country  supplies  no  means, 
nor  affords  any  remedy,  to  compel  the  performance  of  an  agreement  made 
without  sufficient  consideration  ;  such  agreement  is  '  nudum  pactum  ex  quo 
non  oritur  actio;'  and  Avhatever  may  be  the  sense  of  this  maxim  in  the 
civil  law,  it  is  in  the  last  mentioned  sense  only  that  it  is  to  be  understood  in 


General  Survey  of  the  Statute.  83 

§  11.  This  decision  lias  been  justly  regarded  as  setting 
the  question  at  rest ;  and  wo  believe  that  there  are  no  fur- 
ther traces  in  common  law  cases,  of  a  doctrine  sanctioned 
by  judicial  opinion,  that  the  statute  effected  any  change 
whatever  in  the  rules  of  the  common  law,  requiring  a 
consideration  for  every  contract,  and  prescribing  what 

our  law.  The  declaration  states  that  the  defendant,  being:  indebted  as 
administratrix,  promised  to  pay  when  requested,  and  the  judgment  is  against 
the  defendant  generally.  The  being  indebted  is  of  itself  a  sullicient  con- 
sideration to  ground  a  promise,  but  the  promise  must  be  coextensive  with 
the  consideration,  unless  some  particular  consideration  of  fact  can  be  found 
here,  to  warrant  the  extension  of  it  against  the  defendant  in  her  own  capa- 
city. If  a  person  indebted  in  one  right,  in  consideration  of  forbearance  for 
a  particular  time,  promise  to  pay  in  another  right,  this  convenience  will  be  a 
sufllcient  consideration  to  war-ant  an  action  against  him  or  her  in  the  latter 
right;  but  here  no  sufficient  consideration  occurs  to  support  this  demand 
against  her  in  her  personal  capacity ;  for  she  derives  no  advantage  or  conve- 
nience from  the  promise  here  made.  For  if  I  promise  generally  to  pay  upon 
request,  what  I  was  liable  to  pay  upon  request  in  another  right,  I  derive  no 
advantage  or  convenience  from  this  promise,  and  therefore  there  is  not  suffi- 
cient consideration  for  it.  But  it  is  said  that  if  this  promise  is  in  Avriting, 
that  takes  away  the  necessity  of  a  consideration  and  obviates  the  objection 
of  nudum  pactum,  for  that  cannot  be  where  the  promise  is  put  into  writing; 
and  that  after  verdict,  if  it  were  necessary,  to  support  the  promise,  that  it 
should  be  in  writing,  it  will  be  presumed  that  it  was  in  writing;  and  this 
last  is  certainly  true ;  but  that  there  cannot  be  nudum  pactum  in  writing, 
whatever  may  be  the  rule  of  the  civil  law,  there  is  certainly  none  such  in 
the  law  of  England."  "All  contracts  are  by  the  laws  of  England  distin- 
guished into  agreements  by  specialty,  and  agreements  by  parol ;  nor  is  there 
any  such  third  class,  as  some  of  the  counsel  have  endeavored  to  maintain, 
as  contracts  in  writing.  If  they  be  merely  written  and  not  specialties,  they 
are  parol,  and  a  consideration  must  be  proved.  It  is  said  that  the  statute  of 
frauds  has  taken  away  the  necessity  of  any  consideration  in  this  case;  the 
statute  of  frauds  was  made  for  the  relief  of  personal  representatives  and 
others,  and  did  not  intend  to  charge  them  further  than  by  common  law  they 
were  chargeable."  His  lordship  added  that  the  words  of  the  statute  are  merely 
negative,  "and  that  executors  and  administrators  should  not  be  liable  out 
of  their  own  estates,  unless  the  agreement  upon  which  the  action  was  brought, 
or  some  memorandum  thereof  Avas  in  writing  and  signed  by  the  party.  But 
this  does  not  prove  that  the  agreement  was  not  still  liable  to  be  tried  and 
judged  of,  as  all  other  agreements  merely  in  writing  are  by  the  common 
law,  and  does  not  prove  the  converse  of  the  proposition  that  when  in 
writing  the  party  must  be  at  all  events  liable." 


84  General  Suiivey  of  the  Statute. 

shall  be  a  sufficient  consideration  to  sustain  an  action 
upon  it.  Nevertheless  it  has  been  found  necessary  to 
reiterate  in  numerous  subsequent  cases  (some  of  which 
involve  no  question  under  the  statute),  the  principle  that  a 
writing,  not  under  seal,  will  not  suffice  to  sustain  an 
action  upon  a  promise,  without  proof  of  a  sufficient  con- 
sideration ;  as  will  appear  from  an  examination  of  the 
various  elementary  works  on  the  law  of  contracts.  But 
in  cases  arising  under  the  statute  there  is  a  constant  neces- 
sity for  keeping  this  princijole  in  mind  :  for  the  tendency 
is  very  noticeable,  to  draw  from  rulings  made  in  previous 
adjudications  relating  entirely  to  the  sufficiency  of  the 
consideration,  and  arguments  by  which  such  rulings  are 
sustained,  conclusions  upon  the  question  whether  the 
statute  is  applicable.  The  books  contain  many  erroneous 
decisions  and  unsound  doctrines,  which  may  be  directly 
traced  to  this  species  of  misapprehension  of  prior  obscure 
cases.  It  must  therefore  be  remembered,  throughout  all 
the  discussion  which  follows,  that,  in  every  instance  where 
the  statute  is  applicable,  there  are  two  requisites  to  the 
validity  of  an  undertaking,  namely,  first,  the  common 
law  requires  that  it  should  be  supported  by  a  sufficient 
consideration ;  and  secondly,  the  statute  superadds  the 
requirement  that  it  should  be  manifested  by  a  writing,  (c) 


(')  Tlie  decisions  to  this  effect  are  so  numerous  that  we  will  make  no 
attempt  to  collate  tliem  all;  the  following  are  but  a  small  portion  of  the 
Avhole:  Saunders  v.  Wakefield,  4  Barnewall  and  Alderson,  595;  Pratt  v. 
Humphrey,  22  Connecticut,  317;  Clapp  v.  Lawton,  31  id.  95;  Mosely  v. 
Taylor,  4  Dana  (Kentucky),  542 ;  Semple  v.  Pink,  1  Exchequer,  74;  Lines 
V.  Smith,  4  Florida,  47 ;  Wyman  v.  Gray,  7  Harris  and  Johnson  (Maryland), 
409 ;  Elliott  V.  Giese,  7  id.  457  ;  Draughan  v.  Bunting,  9  Iredell  (North  Caro- 
lina), 10;  Sears  V.  Brink,  3  Johnson  (New  York),  210;  Ballard  v.  Walker, 
3  Johnson's  Cases  (New  York),  60 ;  Mills  v.  Wyman,  20  Massachusetts 
(3  Pickering),  207;  Stone  v.  Symmes.  35  id.  (18  Pickering),  467;  Nelson 
T.  Boynton,  44  id.  (3  Metcalf),  39G;  Furbish  v.  Goodnow,  98id.  29G;  Boyce 
V.  Owens,  2  McCord  (S.  C),  208;  Cook  v.  Elliott,  34  Missouri,  58G;  Mallory 
V.  Gillett,  21  New  York,  412  ;  BarrelH-.  Trussell,  4  Taunton,  117;  Bank  of 
Troy  V.  Topping,  9  Wendell  (New  York),  273;  Harrington  v.  Rich,  6  Ver- 
mont, 6GG, 


PART    FIRST. 


OF    SPECIAL    PROMISES    OF    EXECUTORS    AND 

ADMINISTRATORS  TO  ANSWER  DAMAGES 

OUT  OF  THEIR  OWN  ESTATES. 


CHAPTER    FIRST. 


CONSIDERATION   OF    THE    FIRST    CLAUSE    OF    THE    FOURTH 
SECTION   OF  THE  STATUTE. 


AKTICLE  I. 


Points  of  similarity  and  dissimilarity  between  cases  arising  nnder  the  first  and  second 
clanses  respectively  j  whether  this  clause  applies  to  promises  made  before  the  grant  of 
letters. 

§  12,  That  part  of  the  fourth  section  of  the  statute  of 
frauds  which  is  to  be  discussed  in  this  chapter,  provides 
that  no  action  shall  be  brought  upon  any  verbal  agree- 
ment, "whereby  to  CHARGE  any  EXECUTOR  OR  ADMIN- 
ISTRATOR UPON  ANY  SPECIAL  PROMISE  TO  ANSWER  DAM- 
AGES OUT  OF  HIS  OWN  ESTATE."  The  particular  object 
of  this  provision  was  evidently  to  guard  executors  and 
administrators  against  being  held  to  a  personal  liability 
to  pay  debts,  legacies,  or  distributive  shares,  in  conse- 
quence of  wilful  or  mistaken  perversion  of  expressions 
of  encouragement,  which  they  may  have  used  in  conver- 
sation with  claimants,  and  which  were  not  justihed  by  the 
ultimate  result  of  administration  of  the  assets  in  their 
hands.  For  obvious  reasons,  the  cases  where  this  clause 
has  been  subjected  to  judicial  construction  are  but  few, 
when  compared  with  those  depending  upon  that  which 
immediately  follows  it ;  but  in  their  limited  sphere  they 
present  an  equal  proportion  of  perplexing  questions,  and 
conflicting  authorities.  As  the  liabilities  to  which  the  two 
clauses  relate,  resemble  each  other  in  many  particulars, 
and  the  language  of  one  seems  to  have  been  studiously 
framed,  so  as  to  conform  as  closely  as  possible  to  that  of 
the  other,  it  has  been  often  said,  but,  we  think,  without  due 
reflection,  that  they  are  practically  identical,  and  that  this 


88  Peomises  of  Executors,  etc.  [Cli.  i. 

clause  calls  for  no  special  examination  ;  because  the  rules 
establislied  for  the  construction  of  the  second,  are  gene- 
rally applicable  to  the  first,  treating  the  estate  as  the 
original  debtor^  and  the  executor  or  administrator  indi- 
vidually as  the  collateral  promisor.  Indeed,  the  contracts 
embraced  within  the  provisions  of  both  clauses  are  fre- 
quently called  guaranties ;  a  word  correctly  describing 
neither  class,  and  peculiarly  inappropriate  to  those  within 
the  first  clause,  whose  terms  contemplate  only  a  change  in 
form  of  a  liability  already  resting  upon  the  promisor. 

§  13.  So  frequent  is  this  method  of  treating  this  clause, 
that  it  would  almost  seem  that  the  impression  prevails 
that  it  was  inserted  only  from  abundant  caution  on  the 
part  of  the  legislature,  the  second  being  practically  suffi- 
cient, with,  perhaps,  a  slight  change  of  j)hraseology,  to 
cover  the  cases  embraced  within  both.  There  is,  indeed, 
a  close  similarity  between  some  of  the  principles,  by  which 
promises  are  withdrawn  from  the  operation  of  one  and  the 
other,  occasionally  amounting  to  a  coincidence.  The  latter 
is  complete  with  respect  to  the  cases  which  are  taken  out 
of  the  statute,  because  they  fail  to  satisfy  some  word  of 
the  phrase,  "any  special  promise  to  answer."  As  this 
phrase  is  to  be  found  in  both  clauses,  those  cases  wherein 
it  has  been  decided  that  the  second  is  not  applicable  for 
that  reason,  are  very  conclusive  precedents  to  show  thai 
the  first  would  not  be  applicable  under  similar  circum- 
stances. And  there  is  a  class  of  cases  under  the  second 
clause,  not  appearing  to  depend  upon  its  wording,  which 
bear  a  very  close  resemblance,  with  respect  to  the  princi- 
ple which  governs  them,  and  the  facts  calling  for  its  appli- 
cation, to  a  corresponding  class  under  the  first  clause. 
We  refer  to  those  where  a  promise  to  pay  the  debt  of 
another  is  held  to  be  good  without  a  writing,  because  the 
promisor  held  a  fund  proceeding  from  the  debtor,  and 
applicable  to  the  fulfilment  of  the  promise  ;  in  contempla- 
tion of  which  the  promise  was  made.  The  similarity  in 
the  situation  of  the  promisor,  under  such  circumstances, 
and  that  of  an  executor  or  administrator,  having  sufficient 


Art.  I.]  Pkomisks  of  Executors,  etc.  89 

assets  to  pay  the  debt  of  the  decedent,  and  who,  in  con- 
sideration thereof,  verbally  undertakes  to  pay  it,  is  very 
striking.  And  the  principle  u^Don  which  each  description 
of  promises  has  been  held  to  be  without  the  statute,  is 
substantially  the  same.  For  while  the  first  clause  expressly 
provides  that  it  shall  be  applicable  only  to  a  promise  by 
the  executor  or  administrator,  to  answer  damages  "out 
of  his  own  estate,"  the  second  manifestly  has  the  same 
meaning,  with  respect  to  a  liability  incurred  by  one  person 
to  answer  for  the  debt,  default,  or  miscarriage  of  another. 
And  the  courts,  construing  the  second  clause  as  if  these 
words,  used  in  the  first,  were  incorporated  therein,  have 
thereupon  held,  in  deference  to  its  supposed  intent, 
that  where  the  real  debtor's  property  would  ultimately 
reimburse  the  promisor,  the  result  was  the  same  as  if  the 
debt  was  not  to  be  paid  in  the  first  instance  out  of  the 
latter' s  means. 

§  14.  But  the  principles  governing  many  other  descrip- 
tions of  cases,  arising  under  the  second  clause,  while  they 
appear  at  first  sight  to  be  equally  applicable  to  similar 
cases  arising  under  the  first,  will  be  found,  upon  close 
examination,  to  depend  upon  features  wherein  the  two 
classes  of  cases  radically  differ.  The  point  of  difference  is 
generally  dependent  upon  the  fact  that  altliough  in  each 
class  three  interests  are  represented,  questions  can  properly 
arise  for  decision  under  the  second  clause,  only  where  the 
transaction  concerns  three  persons,  and  under  the  first 
only  where  it  concerns  two  per  sons. {a)  For  while  the  per- 
son who  undertakes  to  answer  for  the  debt  of  another, 
becomes  liable  only  by  virtue  of  his  promise,  the  executor 
or  administrator  is  already  liable,  in  his  representative 
capacity,  for  the  payment  of  debts,  legacies,  or  dis- 
tributive shares  ;  and  property  to  which  he  has  a  complete 
legal  title  is  already  sub  modo  pledged  for  that  purpose. 

(a)  Meaning,  of  course,  that  all  persons  jointly  interested,  or  interested  in 
subordination  to  a  party  to  the  contract,  are  counted,  with  such  party,  as  one 
person. 

12 


90  Pko:>iises  of  Executors,  etc.  [Cli.  i. 

And  it  will  be  sliown  in  the  course  of  the  observations 
hereafter  to  be  made  upon  the  second  clause,  that  a  very 
large  proportion  of  the  cases  under  it,  constituting  several 
distinct  classes,  with  many  subdivisions  presenting  nice 
shades  of  distinction,  depend  upon  corollaries  derived 
from  the  general  principle  that  a  promise  to  pay  a  debt 
for  which  the  promisor  or  his  property  was  already  liable, 
is  not  within  the  intent  of  the  statute,  although  it  is  within 
its  terms.  But  where  the  promisor  is  an  executor  oi 
administrator,  this  is  the  precise  case  where  the  first  clause 
unequivocally  provides  that  he  shall  not  be  liable  without 
a  writing.  Again,  the  reasons  why  certain  other  classes 
of  promises  are  taken  out  of  the  statute,  as  not  being 
within  the  second  clause,  may  be  most  satisfactorily  found 
in  a  peculiar  signification  given  to  some  portion  of  the 
phrase  "debt,  default,  or  miscarriages  of  another  per- 
son;" as,  for  instance,  that  numerous  class  where  the 
original  debtor  was  discharged,  before  the  new  promisor 
became  liable.  In  all  such  cases  it  is  manifest  that  the 
grounds  of  the  exclusion  of  one  class  from  the  statute, 
are  entirely  inapplicable  to  the  other,  and  any  attempt  to 
assimilate  the  two  will  only  mislead.  Hence  the  proposi- 
tion that  the  difference  between  the  first  and  second  clauses 
is  only  of  a  formal  character  is  a  fallacy ;  the  dangerous 
character  of  which  is  the  greater,  because,  owing  to  the 
confusion  which  exists  in  many  classes  of  cases  arising 
under  the  second,  it  is  not  always  immediately  obvious, 
when  such  was  the  fact,  that  particular  decisions  turned 
upon  principles  inapplicable  to  cases  arising  under  the  first. 

§  15.  And  the  supposed  analogy  between  the  two  clauses 
has  actually  given  rise  to  serious  errors  of  this  precise 
character,  which  not  only  have  appeared  in  the  elementary 
books,  but  occasionally  have  crept  into  the  judgments  of 
the  courts,  to  the  extent  of  obscuring  the  real  point  at 
issue,  when  they  have  not  led  to  erroneous  decisions.  (&) 

(li)  In  a  work  which  has  received  very  high  encomiums,  where  it  is  said 
that  the  distinction  between  the  first  and  second  clauses  is  more  technical 
;|i;in  substantial,  and  that  bpth  descriptions  of  contracts  are  guaranties,  the 


Art.  I.]  Promises  of  Executors,  etc.  91 

§  16,  Tlie  first  clause  of  the  fourth  section  was  therefore 
inserted,  not  from  abundant  caution,  or  as  a  mere  amplifi- 
cation of  the  second ;  but  to  include  undertakings  of  an 
entirely  difierent  character,  and  not  amenable  to  the  same 

proposition  is  laid  down,  in  discussing  the  corresponding  rule  under  the  second 
clause,  that  where  the  estate  is  discharged  in  consideration  of  the  executor's 
or  administrator's  promise  to  pay  a  creditor  of  the  decedent,  the  promise  is 
not  within  the  statute.  As  authority  for  this  proposition,  three  cases  are 
cited ;  one  of  which  is  Harrington  v.  Rich  (post,  §  38),  and  the  other  two  hold 
that  the  discharge  of  the  estate  is  a  good  consideration  for  an  executor's 
written  undertaking,  even  if  there  were  no  assets.  The  proposition  itself  is 
believed  to  be  irreconcilable  with  the  spirit  as  well  as  the  letter  of  the  statute, 
and  to  proceed  solely  from  the  confusion  to  which  we  have  referred.  With 
great  deference  to  the  learned  tribunal  which  decided  the  case  of  Templetona 
V.  Bascom,  33  Vermont,  132,  (cited  fully  in  chapter  seventeenth),  it  appears 
to  us  that  it  presents  another  instance  of  the  same  species  of  confusion, 
although  without  leading  to  an  erroneous  conclusion.  It  was  decided  upon 
the  hypothesis  that  the  question  arose  under  the  second  clause,  and  the 
decision  has  consequently  provoked  considerable  criticism;  whereas,  if  we 
err  not,  that  clause  had  no  connection  with  the  case.  The  defendant,  the 
only  child  of  a  man  who  had  died  intestate,  leaving  an  estate  more  than  suf- 
ficient to  pay  his  debts,  promised  orally  to  pay  a  debt  of  the  intestate  to  the 
plaintiffs  in  consideration  of  forbearance  against  the  estate.  The  promise 
was  repeated  several  times,  before  as  well  as  after  administration  was 
granted  to  the  defendant;  and  the  court  held  that  the  promise  was  not 
within  the  second  clause,  by  reason  of  the  defendant's  interest  in  the  prop- 
erty. But  none  of  these  were  promises  to  answer  for  the  debt  of  another 
person ;^^0T  before  administration  was  granted  there  was  no  debtor,  and 
afterwards  the  defendant  himself,  in  his  representative  character,  was  the 
debtor.  According  to  Tomlinson  v.  Gill,  Ambler,  330,  (post,  §  13),  the 
promises  made  before  administration  granted  were  not  within  the  first 
clause  of  the  statute ;  and  according  to  Ridout  v.  Bristow,  1  Crompton  and 
Jervis,  231,  as  explained  by  Serle  v.  Waterworth,  4  Meeson  and  Welsby,  9, 
and  Nelson  v.  Serle,  id.  795,  the  forbearance  was  a  sufficient  consideration 
to  sustain  them;  for  although  not  administrator,  the  defendant  was  entitled 
to  administration.  The  promises  made  after  administration  granted,  were 
not  within  the  statute,  under  the  rule  laid  down  in  Stebbins  v.  Smith,  21 
Massachusetts  (4  Pickering)  97,  and  Pratt  v.  Humphrey,  22  Connecticut,  317, 
post,  §§  26  and  28.  Apparently,  Kershaw  v.  Whitaker,  1  Brevard  (South 
Carolina),  9,  A.  D.  1794,  was  also  a  case  where  the  two  clauses  were  con- 
founded, the  confusion  resulting  in  an  erroneous  decision.  In  Harrington  v. 
Rich,  G  Vermont,  G66,  post,  §  38,  there  was  a  misapplication  of  the  principles 
governing  the  second  clause,  to  a  case  exclusively  under  this  clause:  but  it 
did  not  result  in  any  error.     And  see  Hackleman  v.  Miller,  post,  §  35a, 


92  Promises  of  Executors,  etc.  [Ch.  i. 

rules,  although  possessing  considerable  outward  resem- 
blance to  those  embraced  within  the  other.  It  is  quite 
possible  for  cases  to  occur,  where  the  facts  apparently 
bring  the  same  promise  within  the  terms  of  both  clauses, 
and  then  questions  arise  under  both  ;  but  this  is  merely 
accidental,  and  it  is  matter  of  every  day  occurrence  for 
several  legal  propositions,  having  no  necessary  connection 
with  each  other,  to  be  presented  upon  the  same  state  of 
facts,  (c)  But  cases  where  it  is  at  all  doubtful  upon  which 
clause  of  the  statute  the  validity  of  a  verbal  promise 
depends,  are  exceedingly  rare  ;  indeed,  we  have  met  with 
none,  where,  if  the  report  is  not  imperfect,  a  careful 
examination  will  not  remove  all  such  doubts.  From 
inadvertence,  some  confusion  has  arisen  upon  this  point, 
where  the  original  debtor  had  deceased,  and  no  letters 
testamentary  or  letters  of  administration  had  been  granted 
at  the  time  when  the  defendant  undertook  to  pay  the  debt. 
It  has  been  occasionally  assumed  that  a  promise  made 
under  such  circumstances  was  in  terms  a  promise  to 
answer  for  the  debt  of  another  ;  and  if  it  could  be  saved 
from  the  operation  of  the  statute,  when  it  was  verbal, 
some  rule  construing  the  second  clause,  according  to  its 
spirit  rather  than  its  letter,  must  be  invoked  for  the  pur- 
pose. But  it  is  believed  that  if  any  question  arises  in 
such  a  case,  it  is  whether  the  first  clause  is  applicable. 
The  promise  was  not  to  answer  for  the  debt  of  ahother 
person;  for  there  was  no  person  who  owed  the  debt, 
either  individually  or  in  a  representative  character  ;  and 
if  tlie  facts  are  not  such  as  to  raise  any  question  under 
the  first  clause,  it  seems  very  clear  that  the  statute  does 
not  apply  at  all. 

§  17.  In  cases  of  this  kind,  a  question  of  considerable 
nicety  sometimes  arises,  which  will  now  be  examined.  It 
is  presented  where  the  promisor  was  the  executor  named 
in  the  will  of  the  original  debtor,  but  no  letters  testamen- 

(r)  Chandler  v.  Davidson,  6  Blackford,  367;  Pratt  v.  Humphrey,  22  Con- 
uecticut,  317,  are  cases  where  questions  fairly  arose  under  both  clauses. 


Art.  I.]  Promises  of  Executors,  etc.  93 

tary  had  been  issued  to  liim  when  the  promise  was  made  ; 
or  where,  the  debtor  having  died  intestate,  tlie  promisor 
was  appointed  administrator  of  the  estate  after  the  promise 
was  made.  And  a  distinction  has  been  taken  between  the 
verbal  agreement  of  an  executor  and  that  of  an  adminis- 
trator to  pay  the  debt  of  the  deceased  person,  when  it  wa** 
made  before  the  granting  of  letters.  It  has  been  said 
that  as  an  executor  derives  his  title  from  the  will  of  tlie 
deceased,  and  the  interest  and  ofhce  are  completely  vested 
in  him  at  the  instant  of  the  testator' s  death,  (the  probate 
and  grant  of  letters  being  the  authentication  and  not  the 
origin  of  his  title,)  his  promise  is  necessarily  within  the 
statute,  whether  it  is  made  before  or  after  probate ; 
whereas  the  administrator  derives  his  office  and  title 
exclusively  from  the  award  of  letters,  and  consequently 
a  promise  by  him,  before  the  award  of  letters,  is  merely 
that  of  a  person  who  expects  to  represent  an  intestate, 
and  for  that  reason  not  within  the  statute.  ((^) 

§  18.  This  doctrine  is  supposed  to  be  derived  from  the 
equity  case  of  Tomlinson  v.  Gill,  Ambler,  330,  A.  D. 
1756.  There,  according  to  Mr.  Ambler's  report,  the 
defendant,  previous  to  his  appointment  as  administrator, 
had  promised  the  widow  that,  if  she  would  permit  him  to 
be  joined  with  her  in  the  letters  of  administration,  "he 
would  make  good  any  deficiency  of  assets  to  discharge 
the  intestate's  debts."  A  bill  was  filed  by  creditors  of  the 
•  intestate  against  Gill  "  for  a  satisfaction  of  their  debts  and 
performance  of  the  promise,"  and  it  was  insisted  on  the 
part  of  the  defendant,  that  the  promise,  not  being  in 
writing,  was  void  by  the  statute  of  frauds.  But  Lord 
Hardwicke  said  that  there  were  two  questions,  one  on  the 
right  and  the  other  on  the  remedy.  That  the  case  was  not 
within  the  first  branch  of  this  section  of  the  statute,  "for 
Gill  was  not  administrator  at  the  time  of  making  the 
promise,  and  it  is  no  answer  to  say  that  he  was  adminis- 
trator afterwards."     That  it  was  not  within  the  second 


{d)  Roberts  on  Frauds,  201 ;  3  Parsons  on  Contracts,  fifth  edition,  19. 


94  Peomises  of  Executors,  etc.  [Ch.  i. 

branch  because  there  was  "a new  distinct  consideration," 
The  equitable  jurisdiction  was  sustained  upon  the  ground 
that  an  action  at  law  could  not  be  maintained,  because  the 
promise  was  made  to  the  widow  ;  but  it  was  a  proper  case 
for  equity,  because  the  promise  was  for  the  benefit  of  the 
creditors,  and  the  widow  was  a  trustee  for  them.  His 
Lordship  added  that  the  bill  was  for  an  account,  "and 
that  draws  to  it  relief  like  the  common  case  of  a  bill  to  be 
paid  out  of  assets;"  and  accordingly  he  decreed,  not 
merely  an  accounting,  but  payment  of  the  debt.(e) 

§  19.  In  this  case,  it  was  only  necessary,  in  order  to 
dispose  of  the  objection  arising  under  the  second  clause 
of  the  statute,  to  say  that  as  the  original  debtor  had  died 
intestate,  and  no  administrator  had  been  appointed  when 
the  promise  was  made,  there  was  no  one  in  being  to  whom 
the  expression  ' '  another  person ' '  could  possibly  apply  ; 
and  the  reason  in  fact  assigned  by  Lord  Hardwicke,  is 
believed  to  be  entirely  exploded  at  the  present  time.  With 

(e)  It  is  said  by  Lord  Northington,  in  Griffith  v.  Sheffield,  1  Eden,  73  (see 
page  77),  that  the  defendant  Robert  Gill  was  the  father  of  the  intestate. 
Mr.  Ambler's  notorious  inaccuracy  (Marvin's  Legal  Bibliography,  p.  58; 
Preface  to  1  Eden's  Reports;  Preface  to  Blunt's  Ambler;)  would  seriously 
interfere  with  the  authority  of  this  case,  if  Mr.  Blunt  had  not  verified  it,  by 
his  examination  of  the  original  roll.  It  appears  from  his  note  that  the  widow 
and  Robert  Gill  took  out  letters  jointly;  that  the  bill  was  filed  against  them 
both,  and  that  the  decree  declared  the  creditors  to  be  entitled  "  to  have 
the  benefit  of  the  contract,  entered  into  by  the  defendant  Robert  Gill  with 
the  defendant  Catharine  Gill,  before  taking  out  letters  of  administration;  " 
and  accordingly  there  was  a  decree  that  an  account  should  be  taken  of  the 
debts  of  the  intestate,  and  the  property  received  by  the  defendants;  and 
after  applying  the  personal  estate,  "  that  the  defendant  Robert  Gill  do  pay  to 
the  plaintiff,  and  the  several  other  creditors  of  the  intestate,  so  much  money 
as  the  personal  estate  should  fall  short  to  answer  their  several  debts  respect- 
ively." So  that,  although  some  of  the  remarks  attributed  to  Lord  Hardwicke 
in  the  commencement  of  his  opinion,  would  seem  obscurely  to  indicate  that 
it  was  an  "argument"  (agreement)  that  a  specialty  creditor  should  have 
administration,  on  terms  of  paying  all  the  debts,  pari  passu,  there  is  but 
little  room  for  doubt,  that  whatever  inaccuracy  the  report  may  contain  lies 
in  what  Lord  Hardwicke  is  made  to  say,  arguendo ;  the  facts  and  the  decis- 
ion being  ver}"^  accurately  stated. 


Art.  I.]  Promises  of  Executors,  etc.  95 

respect  to  the  application  of  the  first  clause,  his  Lordship's 
reasoning  seems  to  be  quite  unanswerable.  In  an  action 
at  law,  founded  upon  a  verbal  promise  to  pay  the  debt  of 
a  decedent,  it  would  appear  that  the  objection  that  the 
promise  was  within  this  clause  of  the  statute  would 
entirely  fail,  if  the  defendant  could  not  show  that  he  was 
administrator  at  the  time  when  the  promise  was  made, 
because  it  would  be  impossible  to  frame  a  good  special 
plea,  setting  forth  the  facts  upon  which  it  was  insisted  that 
the  statute  avoided  the  promise,  without  making  that 
allegation  in  a  traversable  form.  Upon  a  principle,  in  all 
respects  analogous,  it  is  held  that  the  validity  of  a  promise, 
under  the  second  clause,  depends  upon  the  facts  existing 
at  the  time  when  it  was  made,  and  cannot  be  affected  by 
events  subsequently  occurring.  (/)  And  the  fiction  of  law 
by  which  the  administrator's  appointment  is  allowed  in 
some  cases  to  relate  back  to  the  death  of  the  intestate,  is 
by  no  means  of  universal  application  ;  and  where  it  is 
admitted  it  appears  to  be  allowed  for  the  benefit  of  the 
estate,  {g)  It  ought  not,  therefore,  to  be  used  for  the  mere 
personal  benefit  of  the  administrator,  in  such  a  way  as  to 
prevent  the  real  facts  from  being  shown. 

§  20.  But  there  is  nothing  in  Lord  Hardwicke'  s  decision 
to  warrant  the  conclusion  that  an  executor' s  verbal  prom- 
ise to  pay  a  debt  of  the  decedent  is  void  under  the  statute, 
if  probate  of  the  will  had  not  been  granted  when  it  was 
made.  If  such  is  the  rule  of  law,  it  results  from  princi- 
ples not  discussed  in  Tomlinson  v.  Gill.  And  possibly  it 
may  be  found  upon  examination,  that  the  distinction  sup- 
posed to  exist  between  the  promise  of  an  executor  and 
that  of  an  administrator  may  correctly  be  characterized 
as  "a  very  slight  and  cobweb  distinction;"  an  epithet 
which  Lord  Hardwicke  very  unjustly  applied  to  the  prin- 
ciple established  in  Burlcmirc  v.  Darnell,  6  Modern,  248, 

(/)  See  section  152. 

(9)  1  Williams  on  Executors,  sixth  edition,  392,  393 ;  and  Morgan  v.  Thoma3, 
8  Exchequer,  302,  there  cited. 


96  Promises  of  Executors,  etc.  [Cli.  i. 

now  universally  acknowledged  to  be  a  correct  test  of  tlie 
application  of  the  second  clause. 

§  21.  It  is  very  true  that  the  doctrine  that  an  executor 
derives  his  authority  from  the  will,  and  an  administrator 
from  the  grant  of  letters,  enables  an  executor  to  do  many 
things  before  probate,  which  an  administrator  cannot  reg- 
ularly do  until  letters  have  been  issued  to  him  ;  such  as 
paying,  collecting,  and  releasing  debts  due  to  and  from  the 
estate  ;  taking  possession  of,  selling,  or  otherwise  disposing 
of  the  personal  property  ;  assenting  to  or  even  paying 
legacies  ;  in  short  doing  almost  any  act,  except  maintaining 
an  action  \{h)  and  he  may  even  do  that,  provided  he  obtains 
probate  before  declaring,  so  as  to  be  able  to  make  profert 
of  letters  in  the  declaration.  But  it  is  believed  that  this 
is  one  phase  of  the  principle  of  relation  back  to  the  death 
of  the  intestate,  which  is  allowed  for  the  benefit  of  the 
estate,  and  not  of  the  executor  or  administrator  individu- 
ally. It  is  very  evident  that  the  executor  does  not  derive 
his  office  wholly  from  the  will ;  his  own  assent  is  a  neces- 
sary ingredient  to  its  perfection ;  and  if  he  should 
renounce,  never  having  done  any  act  of  acceptance,  it  is 
believed  that  his  verbal  promise  to  pay  a  debt  of  the  tes- 
tator, made  before  actual  renunciation,  could  not,  upon 
any  sound  reasoning,  be  brought  within  the  statute.  It  is 
therefore  quite  possible  that  if  the  question  shall  be  pre- 
sented directly  for  decision,  it  may  be  found  that  the 
samj^  principle  upon  which  TomlinsoriY.  Gill  was  decided, 
or  an  analogous  principle,  will  sustain  an  executor's  verbal 
promise  to  pay  a  debt  of  his  testator,  if  there  had  been  no 
probate  of  the  will  at  the  time  when  it  was  made. 

§  22.  In  many,  and  probably  in  most  of  the  United 
States,  the  distinction  between  the  powers  of  an  executor 
and  those  of  an  administrator,  before  the  grant  of  letters, 
has  been  to  a  great  extent  obliterated  by  various  statutory 

(/<)  Bacon's  Abridgment,  title  Executors  and  Admistrators,  E.  14;  Went- 
worth's  Office  of  Executor,  14th  edition,  81  et  seq. ;  1  Williams  on  Execu- 
tors, 6th  edition,  291  et  seq. 


Art.  I. !  Promises  of  Executors,  etc.  97 

provisions,  which  require  an  executor  to  prove  tlie  will, 
qualify  (by  taking  an  oath  and  sometimes  also  by  giving 
a  bond),  and  take  out  letters,  before  he  is  authorized  to  act 
in  that  capacity.  And  whatever  may  be  the  correct  rule, 
where  the  common  law  powers  of  executors  have  not  been 
taken  away,  it  would  seem  that  where  such  enactments 
prevail,  the  two  classes  of  personal  representatives  should 
stand  upon  the  same  footing,  with  respect  to  promises 
made  before  the  actual  grant  of  letters.  That  their  powers 
and  privileges  are  substantially  the  same,  appears  from 
the  decision  in  Thomas  v.  Cameron,  16  Wendell  (New 
York),  679,  A.  D.  1837.  There  it  was  held  that,  under  the 
provisions  of  the  Revised  Statutes  of  New  York,  requiring 
executors  to  qualify,  and  forbidding  them  to  interfere  with 
the  estate,  except  for  its  preservation,  till  they  had  pro- 
cured letters,  they  could  not  maintain  an  action  before  the 
actual  grant  of  letters.  The  court  said,  "If  they"  (the 
plaintiffs  suing  as  executors)  "were  not  executors  at 
the  time  the  suit  was  commenced,  letters  subsequently 
obtained  would  not  aid  them  by  relation.  The  statute  has 
introduced  a  new  rule,  by  taking  away  the  common  law 
right  to  sue  before  probate."  And  accordingly  a  plea, 
that  the  plaintiffs  were  not  executors  at  the  time  of  the 
suit,  was  sustained  on  demurrer,  although  the  declaration 
made  profert  of  letters.  And  in  another  New  York  case, 
In  the  matter  of  Faulkner,  7  Hill,  181,  A.  D.  1845,  where 
certain  moneys  belonging  to  the  estate  of  a  testator  had 
been  received,  before  probate,  by  Faulkner,  who  was 
named  as  executor  in  the  will ;  and  who,  after  probate 
and  grant  of  letters,  was  proceeded  against  as  an  abscond- 
ing debtor ;  the  question  was  whether  the  co-executor  was 
entitled  to  a  preference  in  payment  by  the  trustees,  under 
a  statute  providing  for  such  preference,  in  case  of  a  debt 
owing  by  the  debtor  as  executor.  The  trustees  having 
refused  to  allow  the  preference,  a  motion  to  direct  them  to 
allow  it  was  granted,  upon  tlie  principle  of  relation  back 
to  the  death  of  the  decedent,  which  obtains  in  case  of  an 
administrator  acting  before  grant  of  letters.  Bronson, 
C.  J.,  said,  "The  objection  urged  against  this  claim  is  that 
13 


98  Peomises  of  Executoks,  etc.  [Cli.  i. 

as  Faulkner  had  not  then  qualified,  he  was  not  executor 
at  the  time  the  money  was  received.  But  the  answer  is  that 
when  Faulkner  qualified  as  executor,  his  authority  related 
back,  and  legalized  the  payments  which  had  been  pre- 
viously made  to  him.  He  afterwards  held  the  money,  and 
it  was  a  debt  against  him  as  executor." 


ARTICLE  II. 

When  a  general  promise  by  an  executor  or  administrator  to  pay  a  debt  of  tbe  deceased  ia 
without  the  statute,  because  it  is  not  to  be  fulfilled  "  out  of  his  own  estatOi" 

§  23.  It  has  been  said  that  a  promise  by  an  executor  or 
administrator,  in  his  representative  capacity,  to  pay  a 
debt  of  the  deceased,  is  a  mere  nudum  pactum  if  he  has 
no  assets,  and  if  he  has  assets,  that  the  extent  of  the 
promise  is  measured  by  the  extent  of  the  assets,  "or, 
in  other  words,  the  promise  superinduces  no  obliga- 
tion upon  the  original  representative  liability ."  (a)  But 
whatever  may  be  the  legal  effect,  or  the  consequences 
to  either  party,  of  such  a  promise,  apparently  it  is  entirely 
unaffected  by  the  statute  of  frauds.  This  would  seem  to 
be  clear,  although  occasionally  the  distinction  has  not 
been  noticed,  (S)  from  the  fact  that  the  language  of  the 
statute  expressly  confines  its  application  to  a  promise 
"to  answer  damages  out  of  Ms  own  estate^  Indeed  a 
question  might  arise,  whether  these  words  would  be  satis- 
fied by  any  thing  except  an  undertaking  which  in  express 
terms  bound  the  promisor  to  apply  his  own  means  to  its 
fulfilment ;  and  consequently  whether  a  general  promise 
to  pay,  although  it  might  enable  the  promisee  to  maintain 
an  action  against  the  promisor  individually,  and  thus 
obtain  a  personal  judgment  against  him,  was  within  the 
statutory  provision.  But  it  appears  to  have  been  assumed 
by  common  consent,  that  in  that  respect  the  form  of  the 
promise  is  immaterial.     It  may  therefore  be  stated,  as  a 

(a)  Roberts  on  Frauds,  page  207. 

{h)  As  in  Hay  v.  Green,  66  Massachusetts  (12  Gushing),  282,  post  §  45  ; 
and  see  §§  46  to  48. 


Art.  II.]         Promises  of  Executors,  etc.  99 

general  rule,  that  no  verbal  special  promise  of  an  executor 
or  administrator  to  pay  any  demand  for  which  he  is  liable 
only  in  his  representative  character,  will  sustain  an  action 
against  him  individually. 

§  24.  However,  some  American  authorities,  entitled  to 
great  respect,  hold  that  an  exception  to  this  rule  arises 
where  the  promisor  was  possessed  of  assets  of  the  estate, 
applicable  to  the  fulfilment  of  the  promise.  We  find  no 
trace  of  this  exception  in  England  ;  for  although  there  are 
some  English  cases  holding  that  the  possession  of  assets 
is  a  sufficient  consideration  for  the  promise  of  an  executor 
or  an  administrator  to  respond  personally,  it  does  not 
appear  that  the  courts  of  that  country  aff*ord  any  sanction 
to  the  idea  that  it  is  thereby  taken  out  of  the  statute,  (c) 
And  it  is  difficult  to  determine,  upon  either  principle  or 
authority,  at  what  period  of  time  it  must  appear  that  the 
assets  existed,  in  order  to  create  the  exception  recognized 
by  the  authorities  referred  to:  that  is,  whether  it  will 
suffice  to  show  that  at  the  time  of  the  promise  there  were 
assets ;  or  whether  they  must  be  still  in  existence  and 
applicable  to  its  fulfilment,  at  the  time  of  the  trial.  The 
embarrassment  in  settling  the  question  upon  principle, 
grows  out  of  the  fact  that  the  doctrine  itself  rests  upon 
questionable  reasoning.  In  general  terms,  it  may  be  said 
to  depend  upon  the  idea,  that  if  the  executor  or  adminis- 
trator has  the  means  to  discharge  the  liability  out  of  the 
estate,  the  promise  will  not  be  ultimately  fulfilled  out  of 
his  own  property,  although  such  may  be  the  immediate 
eff'ect  of  the  judgment  against  him.  And  in  order  to  give 
full  eff'ect  to  this  reasoning,  it  is  quite  clear  that  there  must 
be  sufficient  assets  in  his  hands  at  the  time  of  the  trial : 
and  consequently  it  would  seem  that  proof  that  such  was 

(c)  2  Williams  on  Executors,  Glh  edition,  1646,  1647,  citing  Reech  v.  Ken- 
negal,  1  Yescy,  Sr.,  126;  Atkins  v.  Hill,  Cowper,  284;  Hawkins  v.  Saimders, 
id.  289;  per  Lord  Cotienham  in  Barnard  r.  Pomfrett,  5  Mylne  and  Craig, 
71;  Trewinian  v.  Howell,  Croke  Elizabeth,  91.  But  see  Rann  v.  Huphes,  4 
Brown's  Parliamentary  Cases,  25,  and  7  Term  Reports,  350,  note,  cited  at 
length, ante,  §  10  and  note. 


100  Promises  of  Executors,  etc.  [Cli.  i. 

the  condition  of  the  estate  at  the  time  of  the  promise,  is 
material  only  as  raising  a  presumption  that  it  continues 
to  be  in  the  same  condition,  which  the  defendant  is  at  lib- 
erty to  disprove.  And  if  in  fact  there  are  no  assets  at  the 
time  of  the  trial,  which  are  applicable  to  the  payment  of  the 
plaintiff's  demand,  it  is  difficult  to  discover  any  ground 
upon  which  the  plaintiff  can  recover,  whether  the  deficiency 
has  been  caused  by  the  discovery  of  prior  claims,  or  by 
the  loss  of  the  assets,  even  by  a  subsequent  devastavit  of 
the  defendant.  This  leads  to  the  anomaly  of  avoiding  an 
unconditional  promise,  valid  at  the  time  when  it  was  made, 
by  the  subsequent  act  of  the  promisor,  to  which  the  prom- 
isee was  no  party  :  and  practically  renders  the  promise  to 
respond  individually,  equivalent,  for  most  purposes,  to  a 
promise  to  respond  in  a  representative  character.  But  if 
it  be  said  that  the  legal  effect  of  the  promise  is  that  the 
promisor  undertook  to  apply  the  assets  then  in  his  hands 
to  the  payment  of  the  plaintiff's  demand,  so  that  he  is 
responsible  in  damages  for  its  breach,  if  they  are  for  any 
cause  applied  otherwise,  this  would  cover  a  case  where 
they  subsequently  became  deficient,  even  without  the  fault 
of  the  promisor,  and  thus  expose  him  "to  answer  damages 
out  of  his  own  estate." 

§  25.  Tliere  is  also  great  obscurity  upon  another  import- 
a,nt  point  in  the  same  connection,  namely,  whether  the 
assets  must  suffice  to  discharge  all  prior  claims  upon 
them,  and  all  other  claims  standing  upon  the  same  footing 
as  that  of  the  promisee.  Upon  the  plainest  principles, 
there  should  be  no  doubt  upon  the  first  branch  of  this 
proposition ;  for  if  the  fund  was  liable  to  be  exhausted 
by  claims  having  a  preference,  the  whole  reasoning, 
whereby  the  promise  was  taken  out  of  the  statute,  falls  to 
the  ground.  But  suppose  that  after  paying  prior  claims, 
the  fund  would  have  sufficed  only  to  pay  a  dividend  to 
the  promisee,  and  all  others  having  claims  of  equal  degree. 
Manifestly  the  recovery  ought  to  be  limited  to  the  amount 
of  the  dividend.  But  if  the  promise  is  to  be  construed, 
according  to  its  terms,  as  an  absolute  engagement  to  pay 


Art.  II.]  Promises  of  Executors,  etc.  101 

the  debt,  how  can  the  damages  for  its  breach  be  reduced  be- 
low the  actual  damages  sustained  by  the  promisee  ?  These 
do  not  depend  upon  the  amount  of  the  dividend  to  which  he 
would  be  entitled  ;  that  is  only  an  element  by  which  to  meas- 
ure the  loss  which  the  promisor  sustains  in  consequence  of 
his  promise.  So  that  it  would  appear  that  for  this  reasou 
also,  a  verbal  promise  to  respond  personally  is  only  prac- 
tically equivalent  to  a  promise  to  respond  in  a  representa- 
tive character,  except  for  the  purpose  of  avoiding  some 
statutory  bar  to  the  maintenance  of  the  action,  in  conse- 
quence of  lapse  of  time.  And  it  is  easy  to  see  that  if  the 
promise  of  the  executor  or  administrator  will  have  that 
effect,  cases  will  sometimes  arise  where  he  will  either  be 
compelled  to  respond  out  of  his  own  means,  or  else  to 
deprive  other  creditors  of  a  preference  to  which  they  have 
acquired  a  legal  right,  [d) 


(d)  Some  of  these  difficulties  pressed  upon  the  mind  of  the  court  in  Moar  v. 
Wright,  1  Vermont,  57)  A.  D.  182G,  in  the  examination  of  the  question  whether 
the  possession  of  assets,  more  than  sufficient  to  pay  all  the  debts  and  legacies, 
was  a  sufficient  consideration  for  an  executor's  promise  to  pay  a  debt  of  his 
testator  to  an  assignee  thereof,  upon  which  an  action  could  be  maintained 
to  charge  the  defendant  de  bonis  propriis.  The  point  was  whether  the 
declaration,  which  contained  those  allegations,  was  sufficient  to  enable  the 
pl!iiTitifr  to  sustain  a  demurrer,  which  he  had  interposed  to  an  insufficient 
plea;  and  the  court,  with  considerable  hesitation,  decided  the  question  in  the 
affirmative,  laying  stress,  however,  on  the  fact,  that  as  the  plaintiff  was  an 
assignee  of  the  debt,  there  was  already  an  equitable  obligation  on  the  part 
of  the  defendant  to  pay  him,  which  formed  an  essential  ingredient  of  the  con- 
sideration. In  the  course  of  the  opinion,  Royce,  J.,  said  that  Forth  v.  Stan- 
ton, 1  Saunders,  210,  was  distinguishable  from  this  case,  because  there  the 
allegation  was  that  the  debt  was  100^.,  and  that  the  defendant  had  received 
a.«!sets  to  the  amount  of  100?.,  but  it  was  not  alleged  "  tnat  at  the  time  of 
making  the  promise  to  the  plaintiff,  she  had  assets  legally  applicable  to  that 
demand  ;  "  so  that  the  promise,  if  enforced,  might  have  subjected  her  to  per- 
sonal loss;  and  he  added:  "A  difficulty  has  been  started,  by  supposing  that 
before  the  execution  of  the  promise,  the  defendant  had  died,  or  had  been 
removed  from  the  office  of  executor.  To  this  the  following  answer  would 
seem  sufficient.  If  upon  accepting  the  personal  undertaking  of  the  executor, 
the  creditor  discharged  the  estate,  the  promise  would  remain  in  force,  .ind 
the  estate  would  be  holden  to  refund  the  sum  paid  upon  it;  and  if  no  dis- 
charge was  given,  the  promise  might  become  invalid,  when  the  fund  which 


102  Promises  of  Executors,  etc.  [Ch.  i. 

§  26.  The  subject  is  full  of  difficulties,  and  the  decisions 
do  but  little  towards  removing  them.  The  whole  of  this 
doctrine  appears  to  derive  its  origin  from  the  case  of 
Stehbins  v.  Smit/i,  21  Massachusetts  (4  Pickering),  97, 
A.  D.  1826.  The  declaration  contained  a  count  upon  an 
insimul  computassent,  and  the  other  money  counts  ;  and 
on  the  trial  it  was  proved  that  the  defendant  and  one 
Alexander  Smith  were  residuary  legatees  and  executors 
of  Jonathan  Smith  ;  that  they  gave  a  bond  to  the  judge 
of  probate  to  pay  the  debts  and  legacies  of  the  deceased  ; 
that  afterwards  the  plaintiff  and  the  defendant  made  an 
examination  of  the  plaintiff' s  demands  against  the  estate, 
and  found  $1,186  to  be  due  to  the  plaintiff,  which  the 
defendant  agreed  to  pay,  and  then  gave  the  plaintiff  his 
negotiable  note  for  $1,286,  payable  on  demand,  with  inter- 
est ;  and  that  the  plaintiff  then  discharged  the  accounts 
and  gave  up  the  notes  which  he  held  against  the  deceased. . 
It  was  admitted  "that  the  defendant  received  some  estate 
by  devise  from  the  deceased,"  and  that  the  note  for  81,286 
had  been  avoided  by  him  on  account  of  usury.  Under 
the  directions  of  the  judge,  the  jury  returned  a  verdict 
for  the  plaintiff,  upon  which  judgment  was  rendered  after 
hearing  the  exceptions.  Wilde,  J.,  delivering  the  opinion 
of  the  court,  said  that  the  note  appeared  to  have  been 
given  subsequent  to  the  promise,  and  that  fact  was  estab- 
lished by  the  verdict :  that  the  note  would  have  discharged 
the  debt  and  the  promise  had  it  not  been  avoided  ;  but  the 
avoidance  restored  the  plaintiff  to  his  former  demand ; 
that  the  discharge  of  the  accounts  and  notes  against  the 
deceased  was  a  sufficient  consideration  for  the  promise, 
the  defendant  being  bound  to  pay  them,  as  he  had  given 
a  bond  in  place  of  returning  an  inventory ;  and  that 
this  discharge  would  be  sufficient  even  if  it  had  not  extin- 
guished the  plaintiff' s  remedy  on  the  bond,  which  appeared 

made  its  principal  consideration,  was  taken  out  of  the  promisor's  hands." 
In  this  case  there  could  be  no  question  under  the  statute  of  frauds,  as  the 
Vermont  act  was  not  passed  till  after  the  promise  had  been  made ;  but  had 
it  been  then  in  force  it  would  not  have  affected  the  result,  inasmuch  as  the 
pleadings  did  not  show  that  the  promise  was  verbal, 


Art.  II."]  Promises  of  Executojis,  etc.  103 

to  be  its  legal  effect.  He  added :  "Tl^e  suggestion  that 
the  promise  is  void  by  the  statute  of  frauds  is  clearly 
unfounded.  It  is  not  a  promise  by  an  executor  to  answer 
damages  out  of  his  own  estate  ;  for  the  bond  given  to  tlie 
judge  of  probate  is  an  admission  of  sufficient  assets  which 
the  defendant  is  estopped  to  deny." 

§  27.  But  only  four  years  afterwards,  we  find  the  same 
court,  in  Sllshee  v.  Ingalls,  27  Massachusetts  (10  Picker- 
ing), 526,  A.  D.  1830,  giving  utterance  to  a  dictum  appar- 
ently in  conflict  with  the  principle  upon  which  Stehhlns  v. 
Smith  was  taken  out  of  the  statute ;  and  the  question 
does  not  seem  to  have  arisen  again  in  that  state,  (e) 


(e)  This  was  a  bill  in  equity  filed  against  an  administratrix,  wherein  the 
phiintiff  alleged,  that  she  had  repeatedly  promised  to  pay  a  debt  due  by  her 
intestate  to  the  plaintiff,  admitting  that  she  had  assets  to  pay  all  the  debts; 
and  that  in  consequence  of  relying  upon  the  promise,  the  plaintiff  forbore 
to  prosecute  for  the  debt,  till  it  was  barred  by  the  statute  of  limitations.  It 
was  further  alleged,  that  she  obtained  an  order  from  the  judge  of  probate  to 
sell  certain  real  estate  of  the  intestate,  in  order  to  pay  his  debts,  which  had 
been  sold  accordingly,  and  the  proceeds  paid  to  her;  that  before  and  after 
the  sale  she  had  promised  to  pay  the  plaintiff  out  of  tiie  proceeds;  and  that 
she  had  rendered  an  account  to  the  probate  court,  in  which  she  had  credited 
herself  with  the  amount  of  the  plaintiff's  debt.  Upon  the  whole  case  made 
by  the  bill,  it  was  insisted  that  she  had  become  a  trustee  of  the  pro- 
ceeds of  the  sale  for  the  plaintiff,  and  the  plaintiff  prayed  for  relief 
accordingly.  There  was  a  demurrer  to  the  bill,  which  the  court  sustained 
on  the  ground  of  want  of  equity,  because  the  plaintiff  once  had  an  adequate 
remedy  at  law,  and  the  intervention  of  the  statute  bar  did  not  make  the 
demand  the  subject  of  equity  jurisdiction.  But  the  court  added:  "It  is 
alleged,  however,  that  there  was  a  promise  by  the  defendant  to  pay  the 
plaintiff.  But  sucii  promise,  not  being  in  writing,  is  witliin  the  statute  of 
frauds;  and  if  it  were  in  writing,  it  would  only  prove  that  there  is  an  ade- 
quate remedy  at  law."  This  doctrine  is  of  but  little  weight  against  the 
authority  of  Stebbins  v.  Smith,  if  that  ca.se  really  holds  that  the  possession 
of  assets  is  sHifficient  to  take  the  executor's  promise  out  of  the  statute.  But 
there  the  defendant  had  already  made  the  debt  his  own,  by  giving  the  bond ; 
and  the  language  of  the  court  may  be  referable  to  the  fact  that  he  was  bound 
to  pay  the  debt  out  of  his  own  estate,  independently  of  the  verbal  promi.>;e. 
This  would  make  the  analogy  perfect  between  this  case  and  one  arising 
under  the  second  clause,  where  the  defendant,  before  making  the  promise, 


104  Peomises  of  Executors,  etc.  [Cli.  i. 

§  28.  In  Pratt  v,  Humphrey,  22  Connecticut,  317,  A.  D. 
1853,  the  action  was  against  the  defendants  in  their  indi- 
vidual capacities,  and  the  plaintiff  declared  on  their  prom- 
ise to  pay  a  certain  sum,  in  a  manner  mentioned  in  the 
declaration,  in  consideration  of  the  plaintiff's  forbearance 
to  present  to  them  as  administrators,  for  allowance  and 
payment,  within  the  time  fixed  for  that  purpose  by  the 
judge  of  probate,  a  debt  due  to  him  by  their  intestate ; 
whereby  under  the  law  of  Connecticut  the  debt  was  lost. 
The  defendants  pleaded  that  there  was  no  writing  within 
the  statute  of  frauds,  to  which  plea  there  was  a  demurrer. 
The  demurrer  was  overruled  in  the  court  below,  and  the 
defendants  brought  error  to  this  court,  where  the  judgment 
was  affirmed.  In  deciding  the  question  which  we  are  now 
considering,  the  court,  Storrs,  J.,  delivering  the  opinion, 
said:  "If  the  defendants  are  not  to  be  deemed  to  have 
assets  of  the  estate  which  they  represent,  it  would  be  a 
very  embarrassing  question,  whether  this  promise  is  within 
the  first  branch  of  the  statute  of  frauds,  which  relates  to 
a  '  special  promise '  (by  an  executor  or  administrator)  '  to 
answer  damages  out  of  his  own  estate.'  In  that  case  it 
would  be  difficult  to  resist  the  claim,  that  it  is  a  promise 
to  answer  damages  out  of  their  own  estate.  But  if  they 
are  to  be  considered  as  having  such  assets,  they  would 
have  a  right  to  charge  to  the  estate  they  represent,  the 
amount  of  the  damages  recovered  of  them  in  this  suit,  and 
it  would  seem,  therefore,  that  those  damages  would  not 
come  out  of  their  own  estate.  They  would  not,  ultimately 
at  least,  although  they  might  in  the  first  instance.  For, 
although  the  judgment  would  be  against  them  personally, 
they  would  be  indemnified  against  it,  by  the  funds  of  the 
estate  in  their  hands.  Hence  the  damages  would  substan- 
tially be  answered  out  of  the  estate  of  their  intestate  ;  and 

had  received  a  fund  from  the  debtor  for  the  purpose  of  paying  the  debt. 
There  can  be  no  doubt  as  to  the  general  principle  that  a  bond  for  payment 
of  debts  and  legacies  conclusively  admits  assets.  It  vs^as  so  ruled  again  in 
Colwell  V.  Alger,  71  Massachusetts  (5  Q-ray),  C7,  A.  D.  1855,  an  action  by  a 
legatee  against  an  executor  and  residuary  legatee  for  a  general  legacy  and 
the  value  of  a  specific  legacy. 


Art.  II.]         Promises  of  Executors,  etc.  105 

the  promise,  in  such  case,  would  appear  to  be  one  which 
was  not  contemplated,  by  tliat  branch  of  the  statute. ' '  After 
stating  the  substance  of  the  case  of  Stehhhis  v.  Smith,  the 
learned  judge  proceeded :  "The  principle  determined  in 
that  case  is,  that  where  an  executor  or  administrator  has 
assets,  a  promise  by  him  to  pay  a  debt  due  by  the  person 
he  represents,  is  not  within  that  branch  of  the  statute. 
We  are  induced,  although  not  without  some  hesitation, 
to  adopt  the  same  construction.  Whether  he  would  be 
liable  on  such  promise,  beyond  the  amount  of  such  assets, 
it  is  not  necessary  to  decide  ;  the  question  before  us  is  as 
to  the  right,  and  not  the  extent  of  the  recovery. "(/) 

§  29.  The  doctrine,  that  the  possession  of  assets  "will 
suffice  to  render  the  statute  inapplicable,  seems  to  rest 
entirely  upon  the  authority  of  Stebhins  v.  SmltJi  and 
Pratt  V.  Humplirey  \{g)  and  in  view  of  the  doubtful  char- 
acter of  the  reasoning  by  which  it  is  sustained,  and  the 
difficulties  to  which  its  practical  application  will  lead, 
they  are  hardly  sufficient  to  establish  it  as  a  settled  rule 
of  American  jurisprudence.  It  finds,  however,  a  very 
close  analogy,  as  was  stated  in  the  preceding  article,  in 

(/)  The  court  proceeded  further  to  determine  that,  upon  the  pleadings 
before  them,  the  presumption  was  that  the  defendants  had  assets,  and  if  the 
fact  was  otherwise,  they  should  have  expressly  averred  it.  It  was  held,  that, 
upon  the  principle  adopted  by  the  court,  the  mere  fact  that  there  was  no  note  or 
memorandum,  etc.,  in  writing,  did  not  necessarily  or  even  prima  facie  bring 
the  case  within  the  statute,  because  the  declaration  was  complete,  without 
stating  the  fact  that  the  defendants  were  adminstrators;  which  was  properly 
matter  for  them  to  allege  in  their  plea,  in  order  to  enable  them  to  raise  the 
defence  of  the  statute.  The  effect  of  the  plaintiff  having  stated  that  the 
defendants  were  administrators,  was  merely  to  relieve  them  of  the  necessity 
of  so  stating  in  their  plea;  they  must  still  set  forth  "such  facts  and  circum- 
stances as  amount  to  a  complete  defence,"  one  of  which  was  that,  as  admin- 
istrators, they  had  not  assets  enough  to  pay  the  plaintiff's  demand.  There 
was  still  another  question  arising  under  the  second  clause  of  this  section  of 
the  statute,  with  reference  to  which  the  case  is  again  cited  in  a  subsequent 
section. 

(jr)  And  see  Collins  v.  Row,  10  Leigh,  114,  cited  in  §  47,  and  comments 
thereon  in  §  48,  post. 
14 


106  Promises  of  Executors,  etc.  [Ch.  i. 

the  principle  that  when  the  promisor  controls  a  fund  pro- 
ceeding from  the  debtor,  applicable  to  the  fulfilment  of  the 
promise,  and  in  contemplation  of  which  the  promisor  un- 
dertook to  pay  an  antecedent  debt  of  a  third  person  to 
the  promisee,  the  case  is  not  within  the  second  clause  of 
tills  section.  But  in  some  of  the  phases  which  that  prin- 
ciple assumes,  it  is  sustained  upon  the  idea,  that  by  the 
receipt  of  the  fund  the  promisor  became  liable,  in 
some  form,  to  pay  the  debt  out  of  his  own  means,  inde- 
pendently of  the  promise  ;  whereas  the  duty  of  an  executor 
or  administrator  is  always  confined  to  the  legal  appro- 
priation of  the  fund  in  his  hands.  Still,  if  the  amount  of 
the  recovery  is  limited  to  the  amount  of  assets  in  the 
hands  of  the  defendant,  applicable  to  the  payment  of  the 
plaintiff,  there  is  no  greater  violation  of  the  intent  of 
the  statute  in  one  case  than  in  the  other,  whatever  may 
be  the  embarrassments  in  reconciling  such  a  limitation 
with  other  principles.  But  it  is  quite  remarkable  that 
this  doctrine  should  rest  entirely  upon  decisions  in  Massa- 
chusetts and  Connecticut.  For  the  courts  of  the  former 
state  stand  alone,  among  all  those  in  the  United  States 
which  have  spoken  upon  the  subject,  in  repudiating  the 
analogous  doctrine  arising  under  the  second  clause  \{?i) 
and  the  Supreme  Court  of  Connecticut,  although  it  has 
not  directly  decided  the  point,  has  nevertheless,  in  a  re- 
cent case,  intimated  an  opinion  the  same  way,  and  ex- 
pressed its  satisfaction  with  one  of  the  Massachusetts 
decisions,  where  the  rule  has  thus  been  laid  down.(i) 

§  30.  Tliere  are  a  few  cases  in  other  states,  the  tendency 
of  which  is  towards  the  contrary  doctrine,  although  they 
are  not  at  all  decisive  upon  either  side  of  the  question,  (y) 

{h)  Curtis  V.  Brown,  59  Massachusetts  (5  Gushing),  488,  and  Furbish  v. 
Goodiiow,  98  Massachusetts,  296. 

(0  Clapp  V.  Lawton,  31  Connecticut,  95,  approving  Curtis  v.  Brown. 

(j)  In  Harrington  v.  Rich,  6  Vermont,  666,  cited  in  §  38,  it  is  very  probable 
that  the  defendant  had  some  assets  out  of  which  a  dividend  could  have  been 
made  on  the  plaintiff's  demand;  but  the  report  does  not  so  expressly  state, 
and  the  declaration  contained  an  averment  that  the  estate  was  "represented 


Art.  ir.]  Promises  of  Executoks,  etc.  107 

In  Cliandler  v.  Davidson,  6  Blackford  (Indiana),  367, 
A.  D.  1843,  the  plaintiff  sued  upon  a  verbal  promise 
made  by  the  female  defendant,  before  her  marriage  with 
the  other  defendant,  to  pay  a  debt  due  to  him  by  her 
deceased  husband.  It  appeared  that  the  first  husband 
died  in  North  Carolina,  having  bequeathed  his  property  to 
his  wife,  and  an  administrator  with  the  will  annexed  was 
then  appointed,  who  sold  the  personalty.  The  widow 
removed  to  Indiana,  bringing  with  her  some  personal  prop- 
erty, part  of  which  she  said  had  been  bought  with  means 
derived  from  the  estate,  and  part  of  which  formerly 
belonged  to  her  husband,  but  it  did  not  appear  how  she 
acquired  title  to  it.  Soon  afterwards  she  made  the  promise 
upon  which  this  suit  was  brought.  The  plaintiff  having 
recovered  in  the  court  below,  an  appeal  was  taken  to  the 
Supreme  Court.  The. opinion,  after  stating  that  the  facts 
showed  no  reason  why  the  promise  was  not  within  the 
second  clause  of  the  fourth  section,  proceeded:  "The 
plaintiff  further  says,  that  the  wife  may  be  viewed  as  an 
executrix  de  son  tort,  on  the  ground  of  her  having  wrong- 
fully taken  possession  of  some  of  the  goods,  and  brought 
them  to  this  state ;  and  that  her  express  promise,  there- 
fore, would  support  the  suit.  But  assuming  her  to  have 
been  such  executrix,  and  that  she  would  have  been 
bound  in  her  own  right,  in  consideration  of  assets,  were 
the  promise  in  writing,  to  pay  the  debt  in  question,  still 
there  can  be  no  doubt,  we  think,  that  the  parol  promise 
was  not  obligatory  on  her  personally.  The  having  assets 
was  not  of  itself  sufficient  to  render  the  promisor  liable  to 
a  suit  in  her  own  right."  For  these  reasons,  as  well  as 
upon  a  technical  objection  to  the  pleadings,  the  judgment 
below  was  reversed.  But  it  may  be  doubted  whether  the 
clause  applies  to  an  executor  de  son  tort.(/t) 

to  be  insolvent."  The  point  whether  tlie  possession  of  such  assets  would 
sustain  the  verbal  promise,  either  to  the  extent  of  the  plaintiff's  proportion, 
or  for  the  full  amount  of  the  debt  was  not  taken.  And  see  Robinson  v. 
Lane,  14  Smedes  and  Marshall,  161,  in  the  note  at  the  end  of  this  article. 

(Jt)  In  this  case  a  question  was  fairly  presented  whether  either  clause  ap- 
plied: the  first,  bec"use  the  widow  was  entitled  to  administration  in  Indiana  ; 
the  second,  because  it  was  a  debt  due  by  the  North  Carolina  administrator. 


108  Promises  of  Executors,  etc.  [Ch.  i. 

§  31.  From  tlie  ruling  in  Sidle  v.  Anderson,  45  Pennsyl- 
vania, 464,  A.  D.  1863,  it  would  appear  tliat  if  the  doctrine 
under  examination  enunciates  a  correct  rule  of  law,  it  is 
essential  to  its  application  to  show  possession  of  assets  by 
the  promisor  at  the  time  of  the  promise  ;  and  although  the 
executor  or  administrator  might  be  ultimately  made  liable 
to  pay  the  demand  out  of  his  property,  in  consequence 
of  a  previous  devastavit,  no  action  will  lie  on  an  express 
verbal  promise  founded  upon  that  consideration.  This 
action  was  to  recover  upon  certain  notes  of  the  defendants, 
and  the  only  question  material  here,  was  whether  a  set-off 
was  properly  allowed.  Tliis  arose  upon  a  sealed  order, 
executed  by  the  plaintiff' s  son,  directed  to  one  Morrison, 
and  requiring  him  to  pay  a  certain  sum  to  one  of  the 
defendants,  which  Morrison  had  refused  to  accept  or  pay. 
The  plaintiff  was  the  administrator  of  his  son' s  estate  ;  and, 
as  the  son  had  died  without  issue,  he  was  entitled  by  law  to 
half  the  property,  after  payment  of  debts,  the  other  half 
belonging  to  the  widow ;  but  he  had  settled  his  adminis- 
tration account  in  ignorance  of  the  defendants'  claim,  and 
had  paid  the  whole  to  the  widow  without  taking  any  bond 
to  refund.  Afterwards,  as  the  jury  found  upon  the  evi- 
dence, he  promised  to  settle  or  pay  the  order,  by  applying 
it  upon  the  notes  in  suit.  Under  the  instructions  of  the 
judge  at  the  trial,  that  the  promise  was  not  within  the 
statute  of  frauds,  the  jury  allowed  the  set-off.  The  judg- 
ment upon  this  verdict  was  reversed  in  the  Supreme  Court 
upon  a  writ  of  error.  The  opinion,  delivered  by  Thomp- 
son, J.,  commenced  by  discussing  the  question  whether 
the  order  imported  an  indebtedness  on  the  part  of  the  son 
to  the  payee,  upon  which  point  he  concluded,  that,  as  it 
was  under  seal,  and  not  negotiable,  and  did  not  purport 
to  be  for  value  received,  it  was  not  alone  sufficient  evidence 
10  charge  the  plaintiff  with  the  amount.  The  opinion  then 
proceeded  to  consider  the  question  arising  under  the 
statute  of  frauds.  After  saying  that  the  proof  of  payment 
to  the  widow,  -without  a  refunding  bond,  was  introduced  to 
establish  a  devastavit,  the  learned  judge  continued:  ''It 
was,  therefore,  not  possible  to  claim  that  the  promise  was 


Art.  II. J         Promises  of  ExECUTOiis,  etc.  109 

made  on  account  of  assets.  The  proof  showed  there  was 
none.  But  it  rested  upon  the  supposed  proof  of  a  devas- 
tavit, which  it  was  assumed  was  the  consideration  for  the 
promise  to  pay  the  order.  If  there  was  a  promise  by  the 
administrator  to  be  personally  liable,  it  had  no  other  con- 
sideration than  that  implied  in  the  allegation  of  an  existing 
devastavit.  Tliere  was  no  express  promise  to  pay  on  any 
such  ground,  and  the  case  of  Wilson  v.  Lonff,  12  S.  &  R. 
68,  very  clearly  determines  that  no  implied  contract  to  pay 
arises  out  of  a  devastavit.  This  would  be  decisive  of  the 
case  on  grounds  independent  of  the  statute.  But  suppose 
the  promise  rested  on  this  ground  expressly.  It  would  be 
a  promise  by  the  administrator  to  '  answer  the  damage 
out  of  his  own  estate,'  for  'the  debt  of  another;'  and  this 
would  certainly  be  within  the  statute,  and  not  binding  for 
want  of  writing  to  that  effect." 

§  32.  In  Okesoji's.  Appeal,  69  Pennsylvania,  99,  decided 
A.  D.  1808,  it  was  held  that  an  executor  was  not  liable 
upon  a  verbal  promise  to  pay  a  debt  of  his  testator,  beyond 
the  promisee's  proportionate  part  of  the  assets  in  his 
hands,  although  the  question  whether  the  promise  created 
any  personal  liability,  was  not  properly  before  the  court. 
This  was  an  appeal  taken  by  Nicholas  A.  Okeson,  admin- 
istrator of  Samuel  Okeson,  from  a  decree  of  the  Orphan's 
Court,  reducing  a  credit  in  his  accounts,  for  a  sum  paid  to 
Margaret  Okeson.  It  appeared  that  Samuel  had  been  the 
executor  of  his  father's  will,  by  which  a  legacy  of  three 
hundred  dollars  was  given  to  Margaret ;  but  the  assets  in 
Samuel's  hands,  after  payment  of  debts,  were  found,  upon 
a  settlement  of  his  accounts  made  in  1843,  to  be  only 
$106.96.  Samuel  died  in  1866,  without  having  paid  Mar- 
garet ;  but  evidence  was  offered,  to  the  effect  that  he  had 
orally  promised  to  pay  her.  Nicholas  paid  her  $803, 
being  the  full  amount  of  her  legacy  and  interest ;  and  the 
widow  of  Samuel  filed  exceptions  to  this  item.  It  was 
insisted  on  the  part  of  Nicholas,  that,  by  the  terms  of  the 
will,  the  legacy  was  charged  upon  the  lands  devised  to 
Samuel;  but  the  Orphan's  Court  thought  otherwise,  and 


110  Promises  of  Executohs,  etc.  [Ch.  i. 

reduced  the  credit  to  Margaret' s  pro  rata  share,  with  the 
other  legatees,  of  the  balance  found  to  have  been  in  the 
hands  of  Samuel,  at  the  time  of  the  settlement  of  his 
accounts.  This  decree  was  affirmed  upon  appeal.  The 
opinion  of  the  Supreme  Court,  delivered  by  Sharswood, 
J.,  after  holding  that  the  legacy  was  not  charged  upon  the 
land,  proceeded  to  say  that  there  was  no  consideration  for 
Samuel' s  promise,  beyond  the  amount  of  personal  assets 
in  his  hands,  and  that  the  cases  appear  to  hold  that  where 
an  executor  or  administrator  promises  to  pay,  in  consid- 
eration of  assets,  the  consideration  and  the  promise  must 
be  co-extensive.  "However  that  may  be,"  added  the 
learned  judge,  "it  is  clear  that  the  executor  cannot  be 
made  liable  de  bonis  propriis,  on  an  oral  promise,  on  the 
mere  consideration  of  assets.  That  would  be  'to  charge 
him  upon  a  promise  to  answer  damages  out  of  his  own 
estate,'  and  therefore  within  the  Act  of  April  26,  1855. "(?) 

(?)  It  seems  to  be  yet  unsettled  in  England,  whether  the  possession  of 
assets  suffices  as  a  consideration  to  support  a  promise  by  an  executor  or 
administrator  to  pay  a  debt  of  the  decedent,  although  Mr.  Justice  Williams 
inclines  to  think  that  it  is  sufficient,  and  that  if  the  promise  was  in  writing, 
he  may  be  sued  thereon  in  his  individual  capacity,  and  the  judgment  will  be 
de  bonis  propriis.  2  Williams  on  Executors,  sixth  edition,  1646,  1647.  And 
forbearance  to  sue  him  as  executor,  at  his  request,  is  also  a  sufficient  con- 
sideiation  for  the  same  purpose,  whether  he  had  assets  or  not;  and  hence  in 
declaring  upon  such  a  promise,  it  is  not  necessary  to  aver  that  he  had  assets. 
Id.  1642.  Consequently  a  promise  by  an  executor,  to  pay  a  debt  of  the 
testator  at  a  future  day,  makes  it  his  own.  Id.  1644,  1645.  So  supplying  the 
executor  individually  with  goods,  or  delivering  up  to  him  deeds  upon  which 
the  plaintiff  had  a  lien  for  his  debt,  forms  a  sufficient  consideration  for  hid 
individual  promise  to  pay  the  debt,  whether  he  had  assets  or  not.  Id.  1646, 
The  leading  American  case,  respecting  the  sufficiency  of  the  consideration  for 
an  executor's  or  administrator's  undertaking,  to  respond  personally  for  a  debt 
of  the  deceased,  and  his  light  to  defend  an  action  thereon  on  the  ground  of 
want  of  assets,  is  The  Bank  of  Troy  v.  Topping,  9  Wendell  (New  York), 
273,  A.  D.  1832.  This  was  an  action  against  the  defendants  individually, 
upon  a  promissory  note  payable  sixty  days  after  date,  executed  by  them  as 
the  administrator  and  administratrix  of  the  estate  of  John  Topping,  deceased. 
At  tlie  trial,  the  defendants  offered  to  show,  that  the  note  in  suit  was  the  last 
of  five  successive  notes,  made  by  the  defendants  in  renewal  of  a  note  held 
ny  the  plaintiffs  against  the  intestate,  at  the  time  of  his  decease;  and  that  the 


Art.  III.]        Promises  of  Executoks,  etc.  Ill 


ARTICLE  III. 

When  this  clause  of  the  statute  does  not  apply,  because  the  suhject-malter  or  the  form 
of  the  promise,  does  not  answer  the  statutory  description  of  the  liabilities  embraced 
within  it. 

§  33.  The  first  and  second  clauses  of  the  fourth  section 
use  precisely  the  same  words,  to  describe  the  form  of  the 
promises,  to  which  they  severally  apply;  and  to  that 
extent  the  decisions  under  the  one  are  applicable  to  cases 
arising  under  the  other.     Upon  the  same  authorities  and 

defendants  having,  in  due  course  of  .idministration,  exli.nusted  tlie  personal 
property  in  their  hands,  obtained  from  the  surrogate  an  order  to  si'll  all  the  real 
estate  of  the  intestate,  for  the  payment  of  debts,  which  -was  done  accordingly; 
and  one  of  tiie  credits  upon  the  note  consisted  of  a  dividend  paid  to  the 
plaintiffs,  out  of  the  proceeds  of  the  sale.  This  evidence  was  rt-jected,  and 
the  plaintiffs  had  a  verdict  fur  the  balance  due  upon  the  note;  which  was  set 
aside  by  the  Supreme  Court,  and  a  new  trial  granted  upon  exceptions. 
Savage,  C.  J.,  delivering  the  opinion  of  the  court,  after  examining  the  previous 
authorities,  concluded  that  they  show  that  assets  in  the  hands  of  execulors 
or  administrators,  constitute  a  sufficient  consideration  to  support  an  express 
promise,  which  will  bind  them  personally,  to  pay  a  debt  of  the  deceased; 
that  forbearance  to  sue  ihem  in  iheir  representative  capacity,  is  also  a  suffi- 
cient consideration  for  the  same  purpose  ;  and  that,  inasmuch  as  a  promissory 
note  imports  a  sufficient  consideration,  but  as  between  the  original  parties 
the  consideration  may  always  be  inquired  into,  the  note  in  suit  w.as  prima 
facie  evidence  of  the  possession  of  assets  sufficient  to  pay  it;  but  that  the 
defendants  might  rebut  that  presumption,  by  showing  that  they  had  no  a.«!sets; 
in  which  case  the  note  would  be  void  for  want  of  consideration,  inasmuch 
as  an  agreement  to  forbear  could  not  be  inferred,  from  the  fact  that  the  note 
was  payable  sixty  days  afterdate.  The  cause  having  been  fried  anew,  and 
the  second  trial  having  also  resulted  in  a  verdict  for  the  plaintiffs,  it  came 
again  before  the  Supreme  Court  in  the  year  1835,  the  decision  upon  the 
second  argument  being  reported  in  13  Wendell,  557.  The  conclusions 
which  the  court  reached  upon  the  former  hearing,  were  reiterated  upon  this 
occasion;  and  in  addition  it  was  expressly  determined,  that  the  onus  of 
proving  want  of  assets  rested  upon  the  defendants,  the  point  not  having  been 
necessary  to  the  decision  upon  the  former  hearing ;  the  ground  taken  here 
being  that  the  note  was  prima  facie  evidence  of  assets,  because  they  are  the 
legal  consideration,  upon  which  such  a  promise  ought  to  be  and  is  presumed 
to  be  founded.  And  in  Robinson  v.  Lane,  14  Smedes  and  Marshall  (Missis- 
sippi), ICl,  A.  D.  1850,  the  defendant's  testator  had  assigned  to  the  plaintiff 
a  note  given   to  him  individually,  and  indorsed   upon  it  his  written  guar 


112  Promises  of  Executors,  etc.  [Cli.  i. 

for  the  same  reasons,  which  exclude  from  the  operation 
of  the  second  clause  implied  promises,  (a)  liabilities  which 
grow  out  of  some  act  other  than  a  promise,  (5)  and  promises 
to  do  some  act  tending  to  the  discharge  of  the  promisee' s 
demand,  other  than  to  pay  the  same,(c)  no  doubt  similar 
liabilities  could  be  enforced  against  an  executor  or  admin- 
istrator, without  written  evidence.  Neither  of  these  is  a 
"special  promise  to  answer"  for  any  debt;  and  although 
this  peculiar  phraseology  has  not  received  much  attention 
in  the  cases  decided  under  the  first  clause,  there  are  a  few, 
which  seem  to  present  questions  arising  upon  some  of  these 
words,  or  at  least  are  proper  to  be  considered  in  connection 
with  them. 

§  34.  With  respect  to  implied  promises  of  executors 
and  administrators,  it  is  quite  obvious  that  the  facts  upon 
which  the  law  would  imply  a  promise  to  respond  individu- 
ally, will  very  rarely  occur.  But  it  has  sometimes  hap- 
pened that  a  liability  incurred  in  a  representative  capacity, 
without  any  express  promise,  has  been  enforced  by  the 
courts  against  the  individual  property  of  the  defendant, 

anty  of  the  consideration,  but  not  of  the  solvency  of  the  makers;  and 
the  declaration  stated  that  the  plaintiff  had  sued  the  makers,  and  had  been 
defeated,  on  the  ground  that  the  note  was  without  consideration.  The 
defence  was,  first,  that  the  consideration  of  the  guaranty  was  a  debt  due  from 
the  estate  of  one  Moore,  of  whose  will  the  defendant's  testator  was  executor, 
and  tliat  there  were  no  assets  of  that  estate ;  and,  secondly,  that  the  plaintiff's 
demand  against  the  estate  of  Moore  was  not  a  valid  one,  and  so  there  was 
no  consideration  for  the  guaranty.  The  court  held  that  the  first  defence 
could  not  be  sustained,  because  the  undertaking  was  in  writing,  and  so  satis- 
fied the  statute  of  frauds,  and  it  was  founded  upon  a  sufficient  consideration, 
namely,  the  discharge  of  the  estate  of  Moore ;  and  that  after  the  defendant 
had  thus  personally  undortaken  to  pay,  it  was  immaterial  whether  there  were 
assets  or  otherwise ;  but,  that  the  second  defence  was  good  in  law,  because 
it  went  to  the  consideration  of  the  guaranty ;  and  the  judge,  at  the  trial, 
having  ruled  out  testimony  offered  by  the  defendant,  tending  to  prove  that 
the  plaintiff's  demand  against  the  estate  of  Moore  was  not  a  just  claim,  the 
judgment  of  the  court  below  was  reversed  for  that  reason. 

(a)  Chapter  fourth,  article  first. 

(5)  Id.,  article  second. 

(c)  Id.,  article  third. 


Art.  III.]        Promises  of  Executors,  etc.  113 

upon  principles  and  under  circumstances  which  led  to  its 
being  practically  treated  as  an  implied  promise,  although 
it  was  not  so  called  in  terms.  As  the  question  whether 
the  executor  or  administrator  had  assets  applicable  to  the 
payment  of  the  plaintiff's  demand,  has  been  made  the 
turning  point  of  his  personal  liability,  where  the  plaintiff 
relies  upon  an  express  promise  not  in  writing;  so  the 
cases  to  which  we  refer  are  those  where  the  possession  of 
assets,  and  a  consequent  liability  to  pay  the  plaintiff,  have 
been  inferred  from  some  act  other  than  an  express  promise, 
or  direct  evidence  of  funds  in  the  defendant's  ha-nds.(rf) 
Thus,  although  the  payment  by  an  executor  or  adminis- 
trator of  interest  upon  a  debt  due  by  the  deceased,  or  even 
payment  of  part  of  the  principal,  will  not  generally  amount 
to  a  conclusive  admission  of  assets,  (e)  yet  payments  of 
interest,  continued  for  a  length  of  time,  will  be  regarded  as 
such  evidence ;  and  under  certain  circumstances  they  will 
be  deemed  conclusive  to  fix  the  executor  or  administrator 
with  a  personal  liability.  And  so  where  the  question  is 
whether  a  legatee  is  entitled  to  be  paid  his  legacy. 

§  35.  This  is  well  illustrated  by  the  case  of  TTie  Attorney 
General  v.  Joseph  Chapman,  3  Beavan,  255,  A.  D.  1840. 
This  was  an  information  against  the  defendant,  who  was 
executor  of  Daniel  Chapman,  to  compel  him  to  purchase 
such  a  sum  of  stock  as  would  produce  20Z.  per  annum  for 
a  charity,  which  it  was  insisted  he  had  made  himself  per- 
sonally liable  to  do.  Tlie  charity  was  first  created  by  the 
will  of  one  Terkins,  who  died  in  the  year  1800,  having 
directed  his  executors  to  purchase  and  stand  possessed 
of  government  stock  to  an  amount  sufficient  to  produce 


(d)  And  in  Connecticut,  and  some  others  of  the  United  States,  it  is  held 
that  the  possession  of  assets  raises  an  imphed  promise  to  pay  a  legacy,  upon 
which  an  executor  or  administrator  may  be  sued  in  assumpsit.  See  post  §  43 

(e)  Savage  v.  Lane,  6  Hare,  32,  andPostlethwaite  v.  Mounsey,  in  note  to  id. 
33 ;  Severs  v.  Severs,  1  Smale  and  Giffard,  400;  Cleverley  v.  Brett,  cited  per 
Buller,  J.,  in  Pearson  v.  Henry,  5  Term  Reports,  8;  Payne  v.  Little,  22 
Beavan,  Gl\ 

15 


114  Promises  of  Executoes,  etc.  [Cli.  I 

201.  per  annum,  for  that  purpose ;  and  making  this  the 
lirst  charge  on  his  personal  estate,  before  debts  and  lega- 
cies, which  he  charged  on  his  real  estate,  if  the  personalty 
should  not  be  sufficient  to  pay  them,  after  making  that 
investment.  He  then  devised  his  real  estate,  so  charged, 
and  also  bequeathed  his  personal  property  to  William 
Chapman  and  Daniel  Chapman,  and  appointed  them  his 
executors.  William  Chapman  died  in  1804,  and  Daniel 
Chapman  in  1820,  ' '  having  regularly  paid  the  201.  down 
to  the  time  of  his  death,"  but  it  did  not  appear  whether 
any  investment  had  ever  been  made  ;  but  no  such  invest- 
ment existed.  The  defendant  was  a  son  of  Daniel  Chap- 
man, who  devised  his  real  estate  to  his  other  sons,  making 
the  defendant  his  executor.  The  devisees,  considering 
the  201.  a  year  to  be  a  charge  upon  the  real  estate,  con- 
tinued to  pay  it  down  to  the  year  1826  ;  when  they  refused 
to  pay  it  any  longer.  From  that  time  till  1833  the  defend- 
ant paid  it ;  but  after  1833  he  refused  to  pay  it.  Upon 
the  hearing  it  was  insisted,  in  behalf  of  the  Attorn-ey-gene- 
ral,  that  the  defendant  had  admitted  assets,  and  thus  made 
himself  personally  liable  ;  and  in  behalf  of  the  defendant 
that  he  was  entitled  to  an  accounting,  and  that  his  liability 
was  limited  to  the  balance  of  assets  of  Daniel  Chapman 
possessed  by  him.  But  the  Master  of  the  Rolls  held  that 
the  defendant,  having  commenced  six  years  after  the  tes- 
tator' s  death  to  pay  the  201.  per  annum,  and  having  con- 
tinued that  payment  for  seven  years  afterwards,  had  ample 
time  to  ascertain  the  state  of  the  assets  ;  and  that  under  the 
circumstances,  this  must  be  deemed  an  admission  of  assets; 
so  that  he  "is  no  longer  entitled  to  have  any  account  of 
them,  but  must  be  declared  to  make  good  the  fund."(/) 

§  35a.  In  Hackleman  v.  Miller.,  4  Blackford  (Indiana), 
322,  A.  D.  1837,  the  plaintiff  sued  as  administrator  of  the 
estate  of  one  Moffitt,  upon  a  note  given  for  the  purchase 
price  of  goods  of  the  estate,  by  one  of  the  defendants,  with 

(/)  See  also  Whittle  v.  Henning,  2  Beavan,  396;  Attorney  General  v. 
Higham,  2  Younge  and  CoUyer,  Chancery,  634;  Corporation  of  Clergymen's 
Sons  V.  Swainson,  1  Vesey,  Sr.,  75. 


Ai-t.  III.]        Promises  of  Executors,  etc.  116 

the  other  as  his  surety;  and  the  principal  defendant  liled  as 
a  set  off  an  assignment  made  before  the  commencement  of 
the  action  by  one  Whitemore  to  him,  of  a  demand  against 
the  estate  in  favor  of  Whitemore,  which  had  been  adjusted 
by  the  plaintiff  as  administrator.  It  appear(!d  that  the  de- 
fendant, before  he  received  the  assignment,  was  informed 
by  the  plaintiff  that  "it  was  good,"  and  that  if  he  pur- 
chased it  he  would  receive  the  full  face  of  it,  in  set  off 
against  the  note  on  which  the  suit  was  brought.  The  court 
below  gave  judgment  for  the  defendant,  and,  on  error,  the 
question  was  whether  the  set  off  was  admissible.  The  Su- 
preme Court  held  that  the  plaintiff  was  suing  in  his  own 
right,  the  words  "administrator,"  &c.,  being  only  matter  of 
description  ;  and  that  the  set  off,  in  order  to  be  admissible, 
must  be  a  demand  against  him  personally  :  that  the  ques- 
tion, therefore,  was  whether  the  case  was  within  that  por- 
tion of  the  statute  of  frauds, relating  to  the  promise  of  an 
executor  or  administrator,  to  answer  personally  for  a  debt 
of  the  estate ;  that  inasmuch  as  the  purchase  was  made 
upon  the  faith  of  the  plaintiff's  promise,  that  the  debt 
should  be  paid,  the  transaction  was  similar,  in  principle, 
to  one  where  a  bill  of  exchange  had  been  purchased  upon 
the  faith  of  a  promise  to  accept  it,  which  had  been  con- 
strued to  be  an  original  promise  to  the  purchaser,  and 
hence  that  the  set  off  should  be  allowed.  The  judgment 
of  the  court  below  was  therefore  affirmed.  Apparently 
the  first  and  second  clauses  of  the  section  were  confounded 
in  this  case,  and  we  doubt  whether  the  decision  can  be 
sustained ;  but  perhaps  it  may  rest  upon  the  ground  that 
'there  was  a  representation,  as  well  as  a  promise,  or  a 
promise  to  do  something  else  than  to  "  ansicer  dam- 
ages.'^ff) 

(/)  But  in  Hay  v.  Green,  66  Massachusetts  (12  Gushing),  282,  the  defendant 
was  present  at  the  auction  sale,  when  the  plaintiff  purchased  the  distributive 
share  of  one  of  the  sons  in  the  intestate's  property,  for  which  the  action 
was  brought,  and  he  then  "  made  a  statement  of  the  supposed  value  of  the 
distributive  share."  After  the  plaintifiF's  purchase,  and  the  subsequent  set- 
tlement by  the  probate  court  of  the  amount  of  the  distributive  share,  the 
defendant  insisted  upon  his  right  to.  deduct  therefrom  a  sum  of  money,  which 


116  PitOMisES  OF  Executors,  etc.  [Cli.  i. 

§  36.  The  promise  must  be  to  the  effect  that  the  executor 
or  administrator  will  "answer  damages"  to  the  promisee, 
that  is,  that  he  will  pay  the  demand ;  and  consequently 
the  statute  has  no  application  to  a  promise,  the  fulfil- 
ment of  which  will  not,  in  whole  or  in  part,  discharge  the 
demand,  or  at  least  necessarily  place  the  promisee  in  a 
position  where  he  can  compel  the  executor  or  administrator 
to  discharge  it.  Doubtless  it  was  for  that  reason  that  a 
submission  to  arbitration  of  a  demand  against  the  estate 
was  held  not  to  be  within  the  statute,  in  the  case  of  Ailing 
V.  Munson,  2  Connecticut,  691,  A.  D.  1818.  This  was  an 
action  brought  by  an  administrator  to  recover  a  sum 
awarded  to  him  by  arbitrators,  upon  submission  of  a  con- 
troversy growing  out  of  a  claim  in  favor  of  the  plaintiff's 
intestate  against  the  defendant;  and  upon  the  trial  it 
appeared  that  the  submission  was  verbal,  although  the 
award  was  in  writing.  The  plaintiff  had  a  verdict,  and  the 
defendant  moved  for  a  new  trial  on  the  ground  of  misdirec- 
tion of  the  jury ;  and  also  in  arrest  of  judgment.  Upon 
the  argument  it  was  contended,  mth  other  objections  to 
the  recovery,  that  the  submission  on  the  part  of  the 
defendant  was  void  for  want  of  mutuality,  or  for  want  of 
consideration ;  because,  if  an  award  had  been  made  against 
the  plaintiff,  he  would  have  been  personally  liable  to  pay 
it,  and  hence  it  was  a  promise  to  answer  damages  out  of 
his  own  estate.  But  the  objection  seems  to  have  received 
but  little  attention,  being  briefly  referred  to  in  one  only  of 
the  opinions  delivered,  and  overruled  without  assigning 
any  reasons  for  the  decision  in  that  respect.  Both  appli- 
cations of  the  defendant  were  denied,  (p') 

he  had  paid  several  months  before  the  sale  took  place,  by  reason  of  a  note  signed 
by  the  intestate  as  surety  for  the  son,  and  he  offered  to  pay  the  plaintiff  the 
amount  of  the  share,  if  he  would  deduct  the  sum  paid  upon  the  note.  The 
couit  held  that  the  defendant  could  avail  himself  of  the  fact  that  the  offer 
was  conditional,  to  defeat  the  action.  See  the  case  more  at  length,  post,  §  45. 
(a)  That  a  submission  to  arbitration  does  not  amount  to  an  admission  of 
assets,  and  so  subject  the  administrator  to  personal  liability  to  discharge  the 
award,  was  decided  in  Pearson  v.  Henry,  5  Term  Reports,  6,  A.  D.  1792. 
This  was  an  action  of  assumpsit  against  the  defendant  as  administrator  for 


Art.  III.]        Piio.MisES  OF 'Executors,  etc.  117 

§  37.  But,  on  the  other  liand,  altliough  a  verbal  submis- 
sion to  arbitration  is  not  open  to  the  objection  that  it  is 
void  because  it  may  result  in  fixing  the  executor  or  admin- 
istrator witli  a  personal  liability,  an  express  promise  to 
pay  the  award,  accompanying  the  submission,  is  clearly 

goods  sold  and  delivered  to  his  intestate,  and  the  defendant  pleaded  plene 
admiiiistravit.  In  order  to  prove  assets,  the  plaintiff's  gave  in  evidence  a 
submission  to  arbitration  made  by  the  defendant  as  administrator,  and  an 
a^v^l^d  that  a  certain  sum  vi^as  due  to  the  plaintifls  from  the  intestate's  estate, 
but  "without  saying  by  whom  it  was  to  be  paid."  The  plaintiflf  was  non- 
suited, and  a  rule  nisi  to  set  aside  the  nonsuit  was  discharged  after  argument. 
Lord  Kenyon  expressly  held,  and  the  other  judges  substantially  agreed  with 
him.  that  the  submission  to  arbitration  did  not  of  itself  amount  to  an  ad- 
mission that  the  administrator  had  assets;  and  that  the  award,  as  it  did  not 
direct  the  defendant  to  pay  the  amount  awarded,  was  not  a  decision  that  he 
had  assets.  And  in  Love,  executor,  v.  Honeybourne,  4  Dowlingand  Ryland, 
814,  A.  D.  1824,  the  cause  had  been  referred  by  a  judge's  order  to  arbitration, 
and  an  award  had  been  made  against  the  plaintiff,  that  a  certain  sum  was  due 
from  his  testator  to  the  defendant,  and  that  the  executor  should  pay  it  on  a 
certain  day  "out  of  the  assets  in  his  hands  as  executor."  On  a  motion  in  behalf 
of  the  plaintiff  to  set  aside  the  award,  the  court  held  that  it  was  not  void  for 
uncertainty,  the  amount  of  the  debt  being  ascertained  and  fixed.  And 
Abbott,  C.  J.,  thought  that  the  award  left  the  question  of  assets  open ;  but 
Holroyd,  J.,  said  that  the  executor  would  not  be  bound  to  pay,  if  he  had 
full}^  administered  at  the  day  mentioned.  On  the  other  hand  it  has  been 
repeatedly  held  that  the  submission  is  a  reference  of  the  question  of  assets, 
as  well  as  of  the  cause  of  action ;  and  therefore  an  unqualified  award  that 
the  executor  or  administrator  shall  pay  the  sum  awarded  is  conclusive  upon 
the  question  of  assets,  and  subjects  him  to  personal  liability  for  the  amount; 
so  that  a  plea  of  plene  administravit,  in  an  action  founded  thereon,  will  be 
held  bad  on  demurrer.  Barry  v.  Rush.  1  Term  Reports,  691,  A.  D.  1787; 
Worthington  v.  Barlow,  7  Term  Reports,  453,  A.  D.  1797;  Riddell  u.  Sutton, 
5  Bingham,  200,  A.  D.  1828.     See  also,  for  parallel  cases,  Wansborough  v. 

Dyer,  2  Chitty,  40,  A.  D.  1815;  and  Robson  v. ,  2  Rose,  50,  A.  D.  1813. 

The  result  of  these  cases  would  seem  to  be  that  a  submisvsion  to  arbitration 
may  result  in  personal  liability  to  pay  the  award ;  because  the  arbitrators 
may,  if  they  see  fit,  take  into  consideration  the  question  of  assets.  But,  if 
they  determine  that  the  executor  or  administrator  is  to  pay  personally,  the 
result  is  caused  by  their  determining  that  he  had  assets;  for  which  reason, 
and  more  satisfactorily,  because  the  submission  is  not  a  promise,  and 
will  not  necessarily  result  in  a  personal  liability,  or  indeed  in  any  liability, 
it  would  seem  to  be  clear  that  a  submission  to  arbitration  is  not  within  the 
Statute.     Perhaps  the  same  may  be  said  of  a  promise  to  arbitrate. 


118  Pkomises  of  Executors,  etc.  [Ch.  i. 

within  the  statute.  This  was  one  of  the  features  of  the 
case  of  Pearson  v.  Henry,  5  Terra  Reports,  6,  A.  D.  1792  ; 
but  the  court,  although  they  sustained  the  decision  at 
nisi  prius,  rejecting  testimony  tending  to  prove  an  under- 
taking to  pay  the  award,  and  nonsuiting  the  plaintiff, 
made  no  reference  to  the  statute ;  and  indeed  the  testi- 
mony was  apparently  offered  only  for  the  purpose  of 
showing  assets  in  the  hands  of  the  defendant.  Lord 
Kenyon  gave  no  reason  for  rejecting  it;  but  BuUer,  J., 
said  that  it  would  not  avail  the  plaintiffs,  because  the 
action  was  against  the  defendant  as  administrator. 

§  38.  And  the  question  was  fairly  presented  in  Harring- 
ton V.  UlcJi,  6  Vermont,  666,  A.  D.  1831.  There  the 
declaration  alleged  in  substance,  that  the  plaintiff  was  the 
assignee  of  a  debt  due  by  one  Samuel  Rich  deceased,  of 
whose  estate  the  defendant  was  administrator ;  that,  after 
the  expiration  of  the  time  allowed  by  the  court  of  probate 
for  the  presentation  of  claims  against  the  estate,  but  before 
the  expiration  of  the  period  allowed  by  law,  within  which 
the  judge  of  probate  might  open  the  commission  for  the 
allowance  of  other  claims,  the  plaintiff  applied  to  him  to 
open  the  same  ;  that  he  was  about  to  act  upon  said  appli- 
cation, when  the  defendant,  in  consideration  that  the 
plaintiff  would  withdraw  it,  and  would  submit  his  claim 
to  arbitration,  promised  to  pay  the  demand  to  the  plaintiff 
"if  it  was  decided  to  be  justly  due ;"  that  the  application 
was  accordingly  withdrawn,  and  the  claim  submitted  to 
arbitration,  and  after  the  arbitrators  had  entered  upon 
their  duties,  the  defendant  revoked  their  powers,  whereby 
the  claim  against  the  estate  was  lost.  The  defendant 
pleaded  non  assumpsit,  and  several  objections  to  a  recovery 
were  taken  by  him  upon  the  trial ;  among  them  that  his 
promise  was  within  the  statute  of  frauds,  as  being  a  prom- 
ise to  answer  for  a  third  person' s  debt,  and  a.  promise  by 
an  administrator  to  answer  damages  out  of  his  own  estate. 
But  the  plaintiff  had  a  verdict,  and  the  judgment  thereon 
was  reversed  upon  exceptions.  In  the  opinion  of  the 
Supreme  Court,  the  question  arising  under  the  statute 


Art.  III.]        Promises  of  Executors,  etc.  119 

was  discussed,  as  if  the  first  and  second  clauses  were 
equally  applicable  to  the  case  ;  and  after  holding  that  this 
promise  was  not  within  several  classes  of  exceptions  to  the 
operation  of  the  second  clause,  the  court  proceeded  to 
consider  the  argument  on  the  part  of  the  plaintiff,  that  the 
disci  large  of  the  estate  took  it  out  of  the  statute.  The 
decision  of  the  question  whether  such  a  discharge  would 
suffice,  for  the  purpose,  was  not,  it  was  said,  necessary  to 
the  decision  ;  because  there  was  no  discharge  of  the  estate 
at  the  time  of  giving  the  promise;  for  an  agreement  to  arbi- 
trate is  not  a  discharge  of  the  cause  of  action,  because  the 
right  to  revoke  is  mutual.  Nor  was  the  case  within  the 
rule,  that  a  new  and  original  consideration  moving  between 
the  parties  would  suffice,  because  the  consideration  did 
not  move  to  the  defendant,  but  only  to  the  estate. 

§39.  The  word  "damages,"  as  used  in  this  clause  of 
the  statute,  appears  to  be  a  superfluity,  as  the  sense  would 
be  equally  clear,  and  perhaps  even  clearer,  had  it  been 
omitted.  Nor  is  the  phraseology  much  improved  by  the 
use  of  the  phrase  "debt  or  damages,"  which  has  been 
substituted  for  it  in  several  of  the  enactments  in  the 
United  States.  In  two  of  the  latter,  (7i)  the  descriptive 
phrase  of  the  sentence  corresponding  to  this  clause  is, 
"promises  by  executors  to  pay  the  debt  of  their  principals 
from  their  own  estate,"  which,  in  addition  to  other  limita- 
tions, confines  the  statutory  requirement  to  debts  of  the 
deceased.  But  in  general  the  American  statutes  have 
copied  the  language  of  the  English  act,  or  used  words  of 
like  import ;  and  these  are  construed  to  include  all  liabili- 
ties resting  upon  the  executor  or  administrator  strictly  in 
his  representative  character ;  and  which,  but  for  the  prom- 
ise, he  would  have  been  liable  to  discharge  only  in  due 
course  of  the  administration  of  the  estate  ;  but  not  those 
which  were  originally  incurred  by  him,  in  consequence  of 
some  act  of  his  own,  even  although  it  was  an  official  act. 


(A)  The  Iowa  and  Nebraska  statutes ;  and  see  the  Oregon  statute. 


120  Promises  of  Executoes,  etc.  [Cli.  i. 

§  40.  An  instance  of  the  species  of  liability,  whicli  is 
not  within  the  statute  for  this  reason,  although  the  point 
is  not  mentioned  in  the  report,  was  presented  to  the  Court 
of  Common  Pleas  in  Ifeert  v.  MoesSard,  1  Moore  and ' 
Payne,  8,  A.  D.  1827.  There  the  defendant  was  one  of  the 
administrators  (doubtless  with  the  will  annexed)  of  one 
Peter  Defreene,  who  had  left  an  annuity  to  his  widow, 
secured  by  2,000^.  of  government  stock,  which  was  to  be 
divided  among  his  children  after  her  death.  Tlie  widow 
having  died  abroad,  the  plaintiff,  who  had  married  one  of 
the  daughters,  defrayed  all  the  funeral  expenses,  to  the 
payment  of  which  all  the  children  agreed  to  apply  a  half- 
year' s  dividend  of  60Z.,  then  due  upon  the  stock.  After 
the  defendant  and  the  other  administrator  had  sold  out 
the  stock,  for  the  purpose  of  dividing  it,  the  defendant 
proposed  to  keep  40Z.  of  the  half-year's  dividend  for  the 
purpose  of  paying  the  plaintiff,  dividing  the  10^.  among 
the  children,  "to  which  all  the  other  branches  of  the 
family  assented;"  and  the  mone}^  was  retained  accordingly, 
the  defendant  not  being  satisfied  with  the  amount  of  the 
charges,  which  the  plaintiff  had  stated  at  Qll.  But  it 
would  appear,  from  the  argument  of  counsel  and  what  is 
said  by  the  court,  that  the  defendant  made  no  express 
promise  to  the  plaintiff  at  the  time,  and  the  action  was  for 
money  had  and  received.  The  objection  of  the  statute  of 
frauds  is  not  stated  in  the  report  to  have  been  distinctly 
taken;  but  the  plaintiff  having  obtained  a  verdict,  the 
defendant  applied  for  a  rule  nisi  to  set  it  aside,  on  the 
ground  that  there  had  been  no  communication  between 
the  parties  ;  and  no  promise,  express  or  implied,  to  render 
him  liable  for  the  funeral  expenses  of  the  widow,  he 
having  received  the  money  as  administrator  of  Peter 
Defreene. (?■)    The  rule  was  refused,   the  court  being  of 


(t)  If  it  had  been  received  as  administrator  of  the  widow,  he  would  have 
been  Hable  for  the  funeral  expenses.  From  the  fact  that  the  case  cited  was 
Rann  v.  Hughes,  ante,  §  10,  it  is  probable  that  the  defendant  relied  upon  the 
statute. 


Art.  III.]        Promises  of  Executors,  etc.  121 

opinion  that,  as  the  money  was  left  in  the  defendant's 
hands,  wdth  the  assent  of  all  parties,  for  the  purpose  of 
paying  the  plaintiff,  the  action  could  be  maintained. 

§  41.  The  point  was  very  clearly  taken  in  a  recent 
American  case,  Chambers  v.  bobbins,  28  Connecticut,  544, 
A.  D.  1859.  There  the  allegations  of  the  declaration,  as 
far  as  they  are  material  to  this  subject,  were,  in  substance, 
that  the  probate  court  had  rendered  a  judgment  admitting 
to  probate  the  will  of  one  Mary  Robbins,  deceased,  and 
appointing  the  defendant  her  administrator  with  the  will 
annexed ;  that  the  plaintiff  and  others,  who  were  heirs  at 
law,  appealed  from  such  decision  of  the  probate  court ; 
that,  wliile  the  appeal  was  pending,  it  was  agreed  between 
the  plaintiff  and  the  defendant,  that  it  should  be  settled 
and  discontinued,  and  that  the  defendant  would  pay  the 
costs  in  the  cause ;  but  that  he  had  not  j3aid  the  costs,  etc. 
At  the  trial  in  the  court  below,  the  plaintiff  introduced 
evidence  tending  to  prove  a  verbal  promise  to  the  effect 
stated  in  the  declaration ;  and  the  defendant  having 
objected  to  the  evidence,  the  damages  were  assessed  con- 
ditionally, subject  to  the  opinion  of  the  court;  and  this 
and  another  question  were  reserved  for  the  advice  of  the 
Supreme  Court.  After  argument,  the  court  below  was 
advised  to  render  judgment  for  the  plaintiff.  Upon  the 
question  whether  the  promise  was  within  the  statute, 
Hinman,  J,,  delivering  the  opinion,  after  saving  that  the 
defendant's  promise  was  not  within  the  statute,  unless  it 
was  to  answer  damages  out  of  his  own  estate,  added: 
"But  the  promise  was  made  in  the  defendant's  private 
capacity,  and  was  itself  the  foundation  of  his  liability  in 
this  action  ;  and  so  far  as  the  costs  in  the  action  that  had 
been  pending  constituted  the  basis  of  his  liability,  they 
accrued  against  him  personally,  and  not  against  the  estate. 
Whether  he  would  have  a  right  to  charge  them  to  the 
estate,  when  paid,  is  unimportant.  Most  of  the  personal 
obligations  of  an  executor,  contracted  in  the  course  of  his 
administration,  are  proper  charges  against  the  estate  in 
the  final  settlement  of  his  account;  but  they  are  none  the 
16 


122  Promises  or  Executors,  etc.  [Cli.  i. 

less  his  private  debts,  for  which  he  is  alone  liable  in  his 
private  capacity.  Tliere  is  no  more  reason  for  saying  that 
the  promise  set  up  in  this  case  is  within  the  statute,  than 
there  is  for  saying  that  the  services  of  a  laborer  or  of  an 
attorney,  which  may  be  required  in  the  course  of  the  set- 
tlement of  an  estate,  must  be  contracted  for  in  writing ;  or 
the  statute  will  preclude  any  recovery  for  them  against 
the  executor.  We  have  no  doubt,  therefore,  that  the 
parol  evidence  was  proper  to  prove  the  promise. "(/) 

§  42.  With  respect  to  an  express  promise  by  an  executor 
to  pay  a  general,  that  is,  a  pecuniary  legacy,  or  by  an 
administrator  to  pay  a  distributive  share,  the  rule  seems 
to  be  settled  in  England,  that  no  action  at  law  will  lie 
against  either,  in  his  representative  capacity,  upon  such  a 
promise ;  but,  if  there  was  a  distinct  and  adequate  con- 
sideration to  sustain  a  promise  to  pay  out  of  his  own 
means,  and  the  promise  was  in  writing,  it  is  dilhcult  to 
discover  any  good  reason  why  the  action  will  not  lie  to 
charge  him  de  bonis  propriis.  It  may  be  doubted  whether 
the  English  cases,  which  are,  at  the  best,  quite  obscure 
and  unsatisfactory,  go  any  further  than  to  say,  that  where 
there  is  no  new  consideration,  the  action  at  law  will  not  lie 
upon  proof  of  assets  merely.  It  was  at  one  time  held 
that  a  legatee  might  recover  in  an  action  against  an  execu- 
tor, founded  upon  an  express  promise,  made  in  considera- 
tion of  assets  ',{7c)  but  it  was  ruled  otherwise  in  a  subse- 
quent case ;( Z)  and,  although  there  the  executor  had  made 
no  express  promise,  and  the  action  was  founded  on  Ms 
having  sufficient  assets,  it  is  said  by  the  leading  elementary 

(j)  See  as  to  the  persorital  liability  of  a  trustee  for  costs  and  other  expenses 
incurred  in  the  discharge  of  his  trust,  Taylor  v.  Mygatt,  26  Connecticut,  184; 
McKay  v.  Royal,  7  -Jones  (North  Carolina),  426 ;  per  Welles,  J.,  Noyes  v. 
Blakeman,  6  New  York  (2  Selden),  580;  Bowman  v.  Tallman,  2  Robertson 
(New  York),  385. 

(k)  Atkins  v.  Hill,  1  Cowper,  284,  A.  D.  1775;  Hawkes  v.  Saunders,  id. 
289,  A.  D.  1782. 

(0  Deeks  v.  Strutt,  5  Term  Reports,  690,  A.  D.  1794. 


Art.  TIT.]        Promises  of  Executors,  etc.  123 

writers  on  that  subject,  that  it  is  generally  understood  in 
England  that  this  decision  holds  unqualifiedly  that  no 
such  action  will  lie,  either  for  a  legacy  or  a  distributive 
share.  {7?i)  But  the  rule  is  different  with  respect  to  a  specific 
legacy,  the  title  to  which  passes  directly  to  the  legatee 
upon  the  executor  s  assenting  thereto,  (ti)  However,  the 
rule  that  the  executor  is  not  liable  to  an  action  at  law,  is 
restricted  to  cases  where  nothing  has  been  done  to  separate 
the  legacy  from  the  common  stock  ;  so  that  whenever,  by 
arrangement  with  the  legatees,  he  ceases  to  hold  the  money 
bequeathed  in  his  character  of  executor,  he  may  be  sued 
as  in  other  cases,  (o) 

§  43.  In  several  of  the  United  States  a  legatee  may  main- 
tain an  action  at  law  against  an  executor  to  recover  a 
general  legacy.  This  has  been  settled  by  a  series  of  decis- 
ions in  Massachusetts,  where,  although  the  courts  concede 
that  the  common  law  rule  is  otherwise,  the  action  is  main- 
tained by  virtue  of  certain  statutory  provisions,  commenc- 
ing with  a  provincial  statute  of  the  5th  of  William  and 
Mary,  and  continued  by  subsequent  enactments  to  the 
present  time ;  the  effect  of  which  seems  to  be  that  after 
the  expiration  of  a  specified  time,  if  the  executor  has 
assets  applicable  to  the  payment  of  the  legacy,  an  action 
may  be  maintained  to  recover  the  amount  of  the  legacy  de 

(m)  2  Williams  on  Executors,  sixth  edition  (A.  D.  1867),  page  17S5,  oiling 
per  Littledale,  J.,  in  Jones  v.  Tanner,  7  Barnewall  and  Cresswoll,  542 ;  and 
referring  also  to  Johnson  v.  Johnson,  3  Bosanquet  and  Puller,  169;  Parish 
V.  Wilson,  Peake's  Nisi  Prius,  73  ;  Nicholson  v.  Sherman,  T.  Raymond,  23, 
and  Siderfin,  45;  per  V.  Ch.  Knight  Bruce,  Holland  v.  Clark,  1  Younge  and 
Collyer,  Chancery,  167.  And  see  Roper  on  Legacies,  fourth  edition,  1797, 
1798. 

(n)  2  Williams  on  Executors,  sixth  edition,  p.  1278;  citing  Williams  v. 
Lee,  3  Atkyns,  223;  Dix  v.  Burford,  19  Beavan,  409;  Westwick  v.  Wyer, 
4  Coke,  28,  b ;  Doe  v.  Guy,  3  East,  120;  Barton's  Case,  1  Freeman,  289; 
Bastard  v.  Stukely,  2  Levinz,  209;  Paramour  v.  Yardley,  Plowden,  539: 
Young  V.  Holmes,  1  Strange,  70. 

(o)  Gorton  V.  Dyson,  Gow,  78,  A.  D.  1819;  Hart  v.  Minors,  2  Crompton 
and  Meeson,  700  (1834) ;  Gregory  v.  Harmanj  1  Moore  and  Payne,  209  (1828). 


124  Peomises  of  Executors,  etc.  [Cli.  i. 

bonis  propriis,  upon  demand  and  refusal  of  payment.  (^) 
In  Connecticut,  the  existence  of  a  similar  right  of  action 
has  been  obscurely  inferred,  without  any  statutory  pro- 
vision, from  two  early  cases ;( q )  but  it  is  fully  recognized 
by  the  more  modern  decisions,  wliich  rest  the  action  upon 
an  implied  assumpsit,  raised  by  the  possession  of  assets, 
and  the  expiration  of  the  time  within  which  the  legacy 
should  have  been  paid,  without  any  express  promise  ;  the 
objection  which  the  English  courts  make  to  sustaining 
the  action,  namely,  the  impracticability  of  making  suitable 
provisions  for  married  women,  etc.,  being  regarded  as 
obviated  by  the  extensive  jurisdiction  of  the  probate 
courts  ;(r)  and  it  has  been  accordingly  said  that  an  action 
will  not  lie  in  equity  without  the  existence  of  sj)ecial  cir- 
cumstances to  confer  equity  jurisdiction,  as  in  other  cases 
where  that  jurisdiction  is  invoked,  {s)  In  some  of  the  other 
states  it  has  been  held  that  the  action  lies,  without  an 
express  promise;  either  by  virtue  of  some  statutory  pro- 
vision, or  because,  as  in  Connecticut,  the  reasons  assigned 
by  the  English  courts  are  regarded  as  inoperative ;(^) 
while  in  others,  an  express  promise  only  will  sustain  it, 
made  either  in  consideration  of  assets,  or  upon  a  new  con- 
sideration, (i^) 

(/))  Farwell  v.  Jacobs,  4  Massachusetts,  634,  A.  D.  1808;  Prescott  v. 
Parker,  14  Massachusetts,  429  (1817) ;  Miles  v.  Boyden,  20  Massachusetts 
(3  Pickering),  213  (1825);  Hapgood  v.  Houghton,  39  Massachusetts  (22 
Pickering),480  (1839) ;  Brooks  v.  Lynde,  89  Massachusetts  (7  Allen),  64  (1863). 

(5';  Lannb  v.  Smith,  1  Root,  419,  A.  D.  1792;  Spalding  v.  Spalding, 
2  Root,  271  (1795). 

(r)  Goodwin  v.  Chaffee,  4  Connecticut,  163,  A.  D.  1822;  Knapp  v.  Han- 
ford,  6  Connecticut,  170  (1826),  and  7  Connecticut,  132  (1828);  Adams  v. 
Spalding,  12  Connecticut,  350  (1837). 

(s)  Colt  V.  Colt,  32  Connecticut,  422,  A.  D.  1865. 

(i)  Pickering  v.  Pickering,  6  New  Hampshire,  120,  A.  D.  1833;  Paynes. 
Smith,  12  New  Hampshire,  34  (1841);  Cowell  v.  Oxford,  1  Halstead  (New 
Jersey),  432  (1798);  Bellerjeau  v.  Kotts,  1  Southard  (id.)  359  (1817);  Pet- 
tigrew  V.  Pettigrew,  1  Stewart  (Alabama),  580  (1828). 

(w)  McNeil  V.  Quince,  2  Haywood  (North  Carolina),  153,  A.  D.  1801 ; 
Clark  V.  Herring,  5  Binney  (Pennsylvania),  33  (1812).  Per  Johnson,  Chan- 
cellor, Lark  v.  Linstead,  2  Maryland  Chancery  Decisions,  163  (1850). 


Art.  irr.  ]         Promises  of  Executors,  etc.  125 

§  44.  But  wliatever  may  be,  in  general,  the  correct  rule 
as  to  the  rigltt  to  maintain  an  action  at  law  for  a  legacy  or 
distributive  share,  it  is  ck^ar  that  the  statute  applies  to  an 
express  promise  to  pay  it,  when  the  action  is  foun(l<'d 
upon  such  a  promise,  and  its  object  is  to  charge  the 
defendant  personally.  Such  was  assumed  to  be  its  con- 
struction in  the  English  case,  already  referred  to  as  having 
been  subsequently  overruled,  of  Hawlces  y.  Saunders^  1 
Cowper,  289,  A.  D.  1782,  where  the  question  came  before 
the  King's  Bench,  upon  a  motion  in  arrest  of  judgment, 
the  plaintiff  having  recovered  a  verdict.  The  declaration 
stated  that  the  plaintiff  was  a  legatee  of  George  Saunders, 
and  the  defendant  was  his  executrix ;  that  assets  more 
than  sufficient  to  pay  all  debts  and  legacies  came  to  her 
hands  ;  and  that  in  consideration  thereof  she  promised  to 
pay  the  plaintiff' s  legacy.  It  was  held,  after  argument, 
that  the  plaintiff  was  entitled  to  judgment  in  this  form  of 
action,  although  it  would  necessarily  be  a  judgment  de 
bonis  propriis,  and  the  rule  was  discharged  accordingl}^. 
Lord  Mansfield,  near  the  beginning  of  his  opinion,  said : 
"It  is  admitted  at  the  bar  that  after  verdict  it  must  be 
taken  to  have  been  a 'promise  in  writing,  and  that  there 
were  assets." 

§  45.  And  it  has  been  said  in  a  Massachusetts  decision, 
although  apparently  the  statute  of  frauds  does  not  provide 
for  such  a  case,  that  a  promise  to  pay  a  legacy  or  distribu- 
tive share,  when  it  was  made  in  a  representative  capacity, 
and  when  the  action  is  against  the  defendant  in  the  same 
capacity,  is  not  valid  unless  it  was  reduced  to  writing. 
Such  appears  to  have  been  one  of  the  points  decided  in  Hay 
V. Green,,  administrator jQQ Massachusetts (12  Gushing), 282, 
A.  D.  1853.  There  the  defendant  was  sued  as  the  adminis- 
trator of  the  estate  of  Thomas  Green,  to  recover  the  amount 
of  the  distributive  share  of  Martin  Green,  a  son  of  Thomas, 
in  his  father's  estate,  as  decreed  in  the  probate  court.  It 
appeared  that  Martin  had  become  insolvent,  and  tlie 
plaintiff  had  purchased  his  share  at  a  sale  by  his  assignee, 
before  it  had  been  settled  by  the  probate  court ;  but  he 


126  Peomises  of  Executors,  etc.  [Ch.  i. 

claimed  to  recover  upon  a  promise  by  the  defendant, 
made  after  the  settlement  in  the  probate  court,  contained 
in  an  offer  to  pay  to  the  plaintiff  the  sum  at  which  the 
share  had  been  settled,  if  he  would  deduct  the  amount  of 
a  note  which  the  deceased  had  signed  as  Martin's  surety, 
and  which  the  defendant  had  paid  before  the  plaintiff  pur- 
chased the  share  ;  but  the  plaintiff  declined  the  offer,  and 
brought  this  action  to  recover  the  whole  of  the  distributive 
share.  The  plaintiff  had  a  verdict,  under  the  ruling  of  the 
judge  that  the  action  could  be  maintained ;  and  the  verdict 
was  set  aside  upon  an  exception  to  that  ruling.  The  court 
held  that  Martin' s  distributive  share  passed  to  the  assignee 
under  the  insolvent  law ;  but  that  although  the  assignee 
might  maintain  an  action  therefor,  his  vendee  could  not. 
Upon  the  point  that  the  plaintiff  could  maintain  the 
action  by  reason  of  the  express  promise,  the  court  said 
that  the  doctrine  would  not  help  him  ;  first,  because  the 
promise  was  subject  to  the  set-off;  and  secondly,  because 
"the  promise,  whatever  its  terms  or  conditions  may  have 
been,  was  oral  only  ;  and  the  defendant,  being  administra- 
tor, and  sued  as  such,  is  not  liable  on  his  promise  unless 
it  is  in  writing."  * 

§  46.  But  it  is  probable  that  the  learned  judge's  remark 
with  respect  to  the  statute  of  frauds  was  inadvertent,  for 
it  is  very  evident  that  a  promise  which,  in  terms  only, 
binds  the  executor  or  administrator  to  pay  out  of  the 
assets  of  the  estate,  is  not  within  the  statute,  whatever  may 
be  the  other  legal  objections  to  maintaining  an  action 
upon  it.  Thus  in  Oreening  v.  Brown,  Minor  (Alabama), 
353,  A.  D.  1824,  it  was  held  that  in  an  action  against  an 
executor  in  his  official  character,  upon  a  note  given  by  his 
testator,  where  the  defendant  pleaded  the  statute  of  limi- 
tations, a  replication  of  a  special  promise  by  the  executor 
was  good  upon  special  demurrer,  although  it  was  not 
averred  to  have  been  in  writing,  the  court  saying :  "If  the 
action  had  been  on  a  promise  by  the  executor  to  pay  the 
debt  out  of  his  own  estate,  the  statute  of  frauds  would 
require  that  the  promise  should  be  in  writing ;  but,  in  order 


Art.  iir.]         Pkomises  of  Executor=i,  etc.  127 

to  take  the  case  out  of  the  statute  of  limitations,  it  was  not 
necessary  that  the  promise  of  the  executor  should  be  in 
writing.  "(^) 

§  47.  Apparently  a  similar  principle  controlled  the 
decision  of  tlie  case  of  Collins  v.  RoiD,\i)  Leigh  (Virginia), 
114,  A.  D.  1839.  There  an  executor  was  sued  in  the  County 
Court  in  his  individual  capacity,  the  declaration  alleging 
a  general  promise  to  pay  for  goods  sold  and  delivered  to 
him  for  the  use  of  the  widow  and  legatees  ;  and  upon  the 
trial  the  plaintiff  proved  the  sale  and  delivery  of  the  goods 
to  the  defendant  for  the  use  of  the  widow  and  legatees  ; 
and  a  verbal  promise  to  pay  for  them  out  of  the  testatof  s 
estate,  and  that  there  were  assets  sufficient  for  the 
purpose.  The  defendant's  counsel  asked  the  judge  to 
instruct  the  jury,  that  if  the  promise  was  to  pay  out  of  the 
testator' s  estate,  and  not  out  of  his  own  estate,  the  promise 
was  not  binding  unless  it  was  in  writing.  The  judge 
refused  to  give  the  instruction  prayed  for.  The  plaintiff 
had  a  verdict;  and  the  judgment  thereon  was  reversed  in 
the  Superior  Court,  with  directions  to  give  the  instructions 
prayed  for,  if  the  plaintiff  should  give  evidence  that  the 
goods  were  delivered  to  the  family  of  the  testator,  or  of 
the  value  or  amount  of  assets  which  came  to  the  defend- 
ant' s  hands.  The  plaintiff  then  brought  error  to  the  Court 
of  Appeals,  where  the  judgment  of  the  Superior  Court  was 
reversed  and  that  of  the  County  Court  affirmed. 

§  48.  The  report  of  this  case  omits  the  arguments  of 
counsel,  and  the  grounds  upon  which  the  decision  in 
either  court  proceeded,  and  it  is  consequently  somewhat 
obscure  ;  but,  if  we  understand  it  rightly,  the  defendant 
assumed  no  individual  liability,  notwithstanding  tlie  use 
of  words  in  the  statement  of  tlie  allegations  made  in  the 
declaration,  and  of  the  facts  proved  at  the  trial,  which 
would  imply  that  he  became  primarily  n^sponsible  for  the 
price  of  the  goods.     No  doubt  the  transaction  was  meant  to 

(v)  And  see  Martin  v.  Black,  20  Alabama,  309,  A.  D.  1852. 


128  Promises  of  Executoks,  etc.  [Ch.  i. 

be  a  sale  to  the  widow  or  legatees,  and  an  agreement  by  the 
defendant,  at  their  request,  to  pay-  the  price  out  of  funds  ap- 
plicable to  the  payment  of  their  legacies  ;  and  the  struggle 
on  the  defendant' s  part  appears  to  have  been  to  bring  the 
case  within  the  second  clause  of  this  section.  But  if,  accord- 
ing to  the  legal  effect  of  the  transaction,  the  sale  was  made 
exclusively  upon  the  defendant' s  promise  to  pay  out  of 
the  estate,  there  was  no  primary  liability  of  any  person  to 
which  the  promise  could  be  collateral ;  and  if  the  defend- 
ant himself  assumed  a  primary  liability  in  his  individual 
capacity,  his  collateral  promise  in  the  capacity  of  exec- 
utor was  without  the  second  clause,  because  it  was  to 
answer  for  the  debt,  not  of  anotlier  person,  but  of  the 
promisor  in  another  capacity.  The  case,  therefore, 
seems  then  to  have  turned  entirely  upon  the  question 
whether  the  promise  was  within  this  clause  of  the  stat- 
ute ;  and,  from  the  language  of  the  request  for  instruc- 
tions, it  is  to  be  inferred  that  the  particular  point  dis- 
cussed was,  whether  a  promise  in  terms  to  pay  out  of 
the  estate  was  within  the  statutory  prohibition.  The 
proof  of  sufficient  assets  may  have  been  introduced  with  a 
view  of  bringing  the  case  within  the  principle  of  Stehhins 
V.  Smith,  and  PrattY.  Humphrey ;{io)'bui it W2i^  necessary, 
without  reference  to  any  question  under  the  statute,  for 
the  purpose  of  showing  that  the  condition  had  happened, 
upon  which  the  defendant's  promise  depended,  whereby 
he  became  personally  liable  for  its  breach. 

{w)  Ante  §§  26  and  28. 


PART    SECOND. 

OF   SPECIAL   PROMISES  TO  ANSWER  FOR  THE 

DEBT,  DEFAULT  OR  MISCARRIAGES  OF 

ANOTHER  PERSON. 


CHAPTER   SECOND. 

OBSERVATIONS  INTRODUCTORY  TO  THE   CONSIDERATION   OF 
THE  SECOND   CLAUSE  OF  THE  FOURTH   SECTION  OF  THE 

STATUTE. 


AETICLE  I. 

Explanation  of  the  terms  nsed  in  treating  tliis  snljeot. 

§  49.  The  second  clause  of  the  fourth  section  of  the  statute 
of  frauds  has  given  rise  to  more  perplexing  questions  and 
contradictory  decisions,  than  any  other  clause  of  that  part 
of  the  statute  which  forms  the  subject  of  this  treatise. 
It  describes  the  species  of  contract  embraced  within  its 
provisions  as  "any  special  promise  to  answer  for  the 

DEBT,  DEFAULT,  OR  MISCARRIAGES   OF  ANOTHER  PI:RS0N  ; " 

and  the  same  expression,  with  slight  verbal  alterations, 
has  been  copied  into  the  various  acts  upon  the  same  sub- 
ject, in  force  in  the  United  States.  It  is  sometimes  said 
that  the  contract  to  which  this  clause  of  the  statute  applies 
is  a  guaranty,  and  that  word  has  been  defined  in  the  lan- 
guage of  the  statute,  (a)  But  properly  speaking,  a  guar- 
anty is  a  contract  to  respond,  only  in  case  of  the  default 
of  a  person  primarily  liable  for  the  payment  of  the  same 
debt,  or  the  performance  of  the  same  duty  ;{b)  whereas  the 

(a)  Chitty  on  Contracts,  8th  English  edition,  p.  4G9.  In  some  standard 
treatises  and  digests  this  part  of  the  statute  is  treated  under  the  head  of 
Guaranty. 

(h)  "  A.  guaranty  is  a  promise  to  answer  for  the  payment  of  some  debt,  or 
the  performance  of  some  duty,  in  case  of  the  failure  of  another  person,  who 
is  in  the  first  instance  liable  to  such  payment  or  performance."  Fell  on 
Guaranty  and  Suretyship,  page  1.  "Guaranty  is  held  to  be  the  contract  by 
which  one  person  is  bound  to  anotlier,  for  the   due   fulfilment  of  a  promise 


132  Collateral  Undertakings.  [Ch.  ir. 

statute  includes  also  contracts  to  respond  in  the  first 
instance,  that  is  without  reference  to  a  default  on  the 
part  of  the  other  person.  Guaranty,  in  a  derivative  or 
primary  sense,  is  identical  with  warranty ;  this  being  a,n 
instance,  of  which  there  are  some  others,  of  the  inter- 
change of  the  Celtic  prefix  W,  with  the  French  prefix  G, 
in  the  formation  of  our  language ;  both  prefixes  being 
sometimes  retained  to  form  distinct  words,  having  slight 
shades  of  difference  in  meaning,  (c) 

§  50.  As  the  exact  meaning  of  the  statutory  definition  is 
imperfectly  conveyed  by  the  word  "guaranty,"  the  term 
' '  collateral  promise' '  is  more  commonly  used,  in  the  discus- 
sions to  which  this  clause  of  the  statute  has  given  rise,  to 
designate  the  species  of  contract  to  which  it  applies  ;  and 
this  term  has  also  the  advantage  of  admitting  an  antithet- 
ical expression,  to  designate  an  undertaking  not  within  the 
provisions  of  the  statute.  Such  an  undertaking  is  com- 
monly styled  an  original  promise.  (tZ)    The  use  of  these 


or  engagement  of  a  tliird  party."  2  Parsons  on  Contracts,  5th  edition,  p.  3. 
"A  guaranty  is  an  engagement  to  be  responsible  for  the  debts  or  duty  of  a 
third  person,  in  the  event  of  his  failure  to  fulfil  his  engagement."  2  Story 
on  Contracts,  4th  edition,  §  852.  "  Guaranty. — A  promise  made  upon  a  good 
consideration,  to  answer  for  the  payment  of  some  debt,  or  the  performance 
of  some  duty,  in  case  of  the  failure  of  another  person,  who  is,  in  the  first 
instance,  liable  to  such  payment  or  performance."  Bouvier's  Law  Diction- 
ary, 8th  edition,  vol.  I,  p.  570. 

(c)  Thus  guard  and  guardian  are  retained  together  with  ward  and  warden ; 
guerre  is  changed  to  war;  and  among  proper  names  William  and  Walter  are 
substituted  for  Guillaume  and  Gautier  (anciently  Gaultier).  The  word  guar- 
anty is  commonly  written  guarantie  in  the  modern  English  books,  and  some- 
times guarantee;  though  the  latter  orthography  is  objectionable,  as  it  prop- 
erly designates  the  correlative  of  guarantor. 

(d)  We  cannot  fix  the  precise  date  when  the  terms  "original  promise  "  and 
"collateral  promise"  acquired  the  meaning  now  generally  ascribed  to  them. 
We  find  the  word  "collateral"  erroneously  used  as  late  as  1730,  in  Elkins  v. 
Heart,  Fitzgibbon,  202,  where  counsel  contended  that  a  promise  that  a 
debtor  should  not  go  beyond  the  kingdom,  without  paying  the  plaintifi^,  was 
not  within  the  statute  of  frauds,  because  it  was  "a  collateral  promise."  But 
in  Stevens  v.  Squire,  Comberbach,  362,  A.  D.   1696,  Holt,  C.  J.,  used  the 


Art.  I,]  Collateral  Undertakings.  133 

expressions  is  not  restricted  to  cases  arising  under  the 
statute  of  frauds ;  on  the  contrary  they  are  habitually 
employed  to  designate  the  contracts  of  princijjal  and 
surety  respectively,  in  all  appropriate  cases.  But  they  are 
so  peculiarly  associated  in  the  law  with  the  statute  of 
frauds,  that  they  may  almost  be  said  to  have  been  incor- 
porated into  the  statute  by  universal  consent.  And,  as  it 
is  rare  to  find  any  two  expressions  which  are  exactly 
synonymous,  it  has  happened  sometimes  that  the  constant 
use  of  the  term  "collateral  promise,''  to  designate  th'e 
species  of  contract,  indicated  by  the  rather  cumbrous 
phraseology  of  the  statute,  and  of  the  term  ' '  original  prom- 
ise "  to  designate  one  of  the  opposite  species,  has  given  rise 
to  confusion  and  even  to  error.  Thus  Comstock,  C.  J.,  in  the 
course  of  his  opinion  in  Mallory  v.  Gillett,  21  New  York, 
412,  which  will  be  hereafter  frequently  referred  to,  says : 
"There  is  sometimes  danger  of  error  creeping  into  the 
law  through  a  mere  misunderstanding  or  misuse  of  terms. 
The  words  '  original '  and  '  collateral '  are  not  in  the  statute 
of  frauds ;  but  they  were  used  at  an  early  day ;  the  one 
to  mark  the  obligation  of  a  principal  debtor ;  the  other  that 
of  the  person  who  undertook  to  answer  for  such  debt. 
This  was,  no  doubt,  an  accurate  use  of  language ;  but  it 
has  sometimes  happened  that,  by  losing  sight  of  the  exact 
ideas  represented  in  these  terms,  the  word  '  original '  has 
been  used  to  characterize  any  new  promise  to  pay  an 
antecedent  debt  of  anotiier  person.  Such  promises  have 
been  called  original,  because  they  are  new ;  and  then,  as 
original  undertakings  are  agreed  not  to  be  within  the 
statute  of  frauds,  so  these  new  promises,  it  is  often  argued, 

word  "  original "  in  iWmodern  sense,  and  in  Birkmyr  v.  Darnell,  1  Salkeld,  27 ; 
6  Modern,  248;  and  2  Lord  Raymond,  1085,  A.  D.  1704,  he  employed  the 
word  "  collateral  "  to  designate  its  antithesis.  The  distinction  between  the  two 
forms  of  expression,  with  direct  reference  to  the  application  of  the  statute 
of  frauds,  was  taken  by  Lee,  C.  J.,  in  Read  v.  Nash,  1  Wilson,  305,  A.  D. 
1751 ;  and  we  believe  that  Elkins  v.  Heart  is  the  latest  case  where  the  term 
"collateral  promise"  was  used  as  descriptive  of  a  promise  not  within  the 
statute;  although  in  some  American  cases  we  have  met  with  the  expression 
"an  original  collateral  promise." 


134  Collateral  Undertakings.  [Ch.  ii. 

are  not  within  it.  If  the  terms  of  the  statute  were  adhered 
to,  or  a  more  discriminating  use  were  made  of  words  not 
contained  in  it,  there  would  be  no  danger  of  falling  into 
errors  of  this  description,  "(d) 

§  51.  For  the  purpose  of  avoiding  circuity  or  redundancy 
of  expression,  we  shall,  in  the  discussion  under  this  clause, 
always  use  certain  words  in  a  particular  and  somewhat 
conventional  sense ;  except  where  a  different  meaning  is 
indicated  in  the  passage  where  they  appear.  Thus  the 
term  ' '  promisor ' '  will  be  employed  specifically  to  designate 
the  person  whose  liability,  under  a  verbal  promise,  which 
is  supposed  to  be  to  answer  for  the  debt,  default,  or  mis- 
carriage of  another,  is  the  subject  of  discussion.  Of  course 
the  person  to  whom  the  promise  was  made  will  be  gene- 
rally styled  the  "promisee  ;"  but  occasionally  the  word 
"creditor"  will  be  used  to  designate  him  ;  and  the  words 
' '  debt "  or  "  indebtedness ' '  to  designate  the  liability  which 
the  promisor  has  assumed  to  discharge,  without  reference 
to  the  question  whether  such  liability  arises  out  of  a  con- 
tract to  pay  money,  or  to  perform  some  other  act ;  or 
whether  it  arises  out  of  a  tort.  And  when  we  speak  of 
"the  third  person,"  we  always  mean  him  for  whose  debt, 
default  or  miscarriage,  the  promisor  has  undertaken,  or 
is  supposed  to  have  undertaken,  to  answer ;  except  of 
course  when  the  language  of  others  is  quoted,  wherein 
that  term  is  used,  as  frequently  happens,  to  denote  the 
person  whom  we  style  the  promisor.  The  peculiar  appro- 
priateness and  precision  of  the  expression  ' '  the  third  per- 
son," in  the  sense  in  which  we  use  it,  will  appear  hereafter. 


(e)  See  also  Buller's  Nisi  Prius,  page  281 ;  and  per  Grover,  J.,  in  Brown 
V.  Weber,  38  New  York,  187,  on  page  190. 


Art.  II.]  Collateral  Undertakings.  136 

ARTICLE  11. 

How  &r  the  consideration  of  a  Terbal  promise  affects  its  Taliditji 

§  52.  A  few  general  suggestions  upon  this  subject  will  be 
useful  here  ;  although,  as  the  question  enters  into  nearly 
every  discussion  arising  under  this  branch  of  the  statute, 
they  will  necessarily  be  merely  prefatory  to  a  more  com- 
plete examination  hereafter.  A  vast  amount  of  error  has 
been  predicated  upon,  and  defended  by  arguments,  grow- 
ing out  of  the  nature  and  character  of  the  consideration 
of  the  promise.  A  struggle  was  commenced,  almost  sim- 
ultaneously with  the  enactment  of  the  statute,  to  with- 
draw from  its  operation,  undertakings  which  were  clearly 
nothing  but  promises  to  answer  for  the  debt,  default,  or 
miscarriages  of  another  person,  but  which  were  founded 
upon  meritorious  considerations  of  different  kinds ;  and 
it  has  been  maintained  ever  since,  with  great  persistence 
and  ingenuity,  and  at  times  with  considerable  success. 
In  England,  the  rule  is  now  generally  admitted  to  be  that 
the  character  of  the  consideration  is  immaterial ;(«)  and 
we  believe  that  the  courts  in  this  country  are  tending  to 
the  same  conclusion ;  but  the  contrary  opinion  has  had 
great  prevalence  among  us,  and  its  extinction  has  been  a 
work  of  time  and  difficulty.  At  one  period  of  our  legal 
history,  the  doctrine  that  any  new  and  original  considtTa- 
tion,  whether  of  benefit  to  the  promisor  or  harm  to  the 
promisee,  sufficed  to  sustain  a  verbal  promise  to  pay  the 
debt  of  another,  was  generally  recognized  as  a  settled 


(a)  The  correct  rule,  as  recognized  in  England,  is  contained  in  the  follow- 
ing extract  from  Messrs.  Patteson  and  Williams's  note  to  Forth  v.  Stanton, 
1  Williams's  Saunders,  211 :  "The  question,  indeed,  is,  what  is  the  promise? 
whether  it  be  a  promise  to  answer  for  the  debt,  default,  or  miscarriage  of 
another,  for  which  that  other  remains  liable  ;  not  what  the  consideration  for 
the  promise  is ;  for  it  is  plain  that  the  nature  of  the  consideration  cannot 
Rffect  the  terms  of  the  promise  itself,  unless,  as  in  the  case  of  Goodman  v. 
Chase,  it  be  an  extinguishment  of  the  liability  of  the  original  party."  Seo 
Fitzgerald  v.  Dressier,  7  Common  Bench,  N.  S.,  374,  cited  in  full  hereafter. 


loO  COLLATEEAL   UNDERTAKINGS.  [Cll.  n. 

principle  of  American  jurisprudence, (5)  and  even  to  the 
present  day,  a  rule  not  essentially  different  may  be  found 
laid  down  in  some  cases  of  very  higli  authority,  (c) 

§  63.  But  it  is  believed  that  the  proposition  can  now  be 
maintained  upon  principle  and  upon  the  weight  of 
authority,  that,  although  the  nature  and  effect  of  the 
consideration  are  frequently  material  elements  in  deter- 
mining the  question,  whether  a  particular  case  is 
within  the  statute,  they  are  so  only  as  far  as  they 
shed  light  upon  the  character  of  the  promise ;  that  is, 
whether  it  is  an  undertaking  to  answer  for  another' s  debt 
or  default,  in  the  sense  contemplated  by  the  statute,  as  the 
latter  is  construed  by  the  rules  generally  recognized  for 
that  purpose.  For  instance,  if  the  foundation  of  the  prom- 
isor' s  engagement  to  pay  money  appears  to  have  been  the 
delivery  of  goods,  by  the  promisee,  to  the  third  person  ; 
prima  facie  it  is  a  sale  to  the  latter,  and  he  is  liable  for 
the  price  ;  and,  therefore,  the  express  undertaking  of  the 
promisor  to  respond  for  the  price,  is  collateral  to  the  im- 
plied undertaking  of  the  purchaser  to  the  same  effect. 
But  if  it  be  alleged  that  in  fact  there  was  no  sale  to  the 
person  to  whom  the  goods  were  delivered,  the  delivery 
having  been  upon  the  credit  of  the  defendant' s  promise 
only,  although  the  nature  and  character  of  the  considera- 
tion then  become  the  turning  points  of  the  case,  their 


(b)  In  Meech  v.  Smith,  7  Wendell  (New  York),  315,  A.  D.  1831,  Savage, 
Ch.  J.,  said:  "  Was  the  contract  within  the  statute  of  frauds?  It  is  a  parol 
agreement  to  pay  the  debt  of  a  third  person,  and  is  therefore  within  the 
terms  of  the  statute.  The  rule,  however,  has  long  been  settled,  that  though 
such. a  promise  be  by  parol,  if  it  arises  out  of  some  new  and  original  con- 
sideration of  benefit  or  harm,  moving  between  the  newly  contracting  parties, 
it  is  not  a  case  within  the  statute;  it  then  becomes  a  new  and  original  con- 
tract. Such  a  promise  is  void  in  such  cases  only,  when  the  debt  of  the  third 
person  is  the  only  consideration,  or  when  the  new  consideration  is  not  suffi- 
cient to  support  the  contract."  "  This  rule  has  been  recognized  by  all  writers 
on  contracts,  and  has  been  recognized  by  the  highest  court  in  this  state; 
it  is,  therefore,  as  mvch  the  law  of  the  land  as  the  statute  itself." 

(c)  This  question  is  fully  discussed  in  the  seventeenth  chapter. 


Art.  II.]  Collateral  Undertakings.  137 

importance  is  not  due  to  any  eflficacy  attaching  directly  to 
the  consideration  itself,  but  to  ttie  light  which  they  shed 
upon  the  character  of  the  promise.  For  if  the  third  per- 
son was  not  liable,  the  promise  must  have  been  original 
in  its  character ;  because  there  was  no  debt  of  another  to 
which  it  could  have  been  collateral.  So  when  a  promise 
to  pay  a  debt  due  from  a  third  person  is  taken  out  of  the 
statute,  because  it  is  to  be  fulfilled  out  of  a  fund  placed  by 
him  in  the  hands  of  the  promisor,  the  existence  of  such  a 
fund,  as  a  part  of  the  consideration,  is  material  only 
because  it  shows  that  the  promisor  was  already  in  some 
form  liable  to  pay  the  debt,  or  that  the  promise  was  not 
to  be  fulfilled  out  of  his  own  means,  or  that  for  some  other 
reason  his  engagement  was  in  reality  of  a  different  charac- 
ter from  a  promise  to  pay  out  of  his  own  means,  as  in  form 
it  purported  to  be.  So,  also,  if  the  consideration  was  the 
release  or  surrender  of  some  lien  upon  property,  available 
to  the  promisee  for  the  collection  of  his  debt ;  the  rule,  as 
now  understood,  is  that  the  promise  is  without  the  statute, 
only  when  the  promisor  was  the  owner  of  some  title  to  or 
interest  in  the  property,  so  that  he  acquired  whatever  was 
surrendered  by  the  promisee ;  the  nature  of  the  consid- 
eration, therefore,  becomes  material,  as  showing  that  the 
promise  was  in  reality  an  undertaking  to  pay  a  charge 
already  resting  upon  the  promisor' s  property  ;  and  hence 
that  he  undertook  merely  for  the  payment  of  that  which, 
in  a  qualified  sense,  was  already  his  own  debt.  (<^) 


(d)  As  will  be  seen  hereafter  (chapter  xvii),  we  deny  the  soundness  of  the 
general  proposition,  which  some  of  the  most  respectable  American  authorities 
yet  maintain,  that  a  promise  is  without  the  statute,  when  the  leading  object 
of  the  promisor  was  to  subserve  some  interest  of  his  own;  and  the  discharge 
of  the  third  person  was  only  to  be  incidentally  accomplished  by  the  fulfil- 
ment of  the  promise.  Where  the  consideration  of  the  promise  was  the 
simultaneous  discharge  of  the  third  person  from  an  antecedent  debt,  the 
promise  is  without  the  statute,  for  the  same  reason  which  obtains  when  the 
consideration  of  the  promise  was  goods,  etc.,  then  delivered  to  the  third 
person  upon  the  credit  of  the  promise  only  ;  namely,  because  there  was  no 
debt  to  which  the  promisor's  undertaking  could  be  collateral.  Those  two 
classes  o.  cases  illustrate  the  proposition  stated  in  the  text  quite  as  forcibly 
18 


138  Collateral  Undertakings.  [Ch.  n. 

§  54.  In  these  cases,  the  nature,  character  and  effect  of 
the  consideration  are  merely  circumstances  which  show 
what  was  the  substantial,  as  distinguished,  (if  necessary,) 
from  the  formal  character  of  the  promise.  But  if  the  cir- 
cumstances fail  to  show  that  the  promise  was  not  to 
answer  for  the  debt,  default  or  miscarriage  of  another, 
within  some  of  the  settled  rules  of  construction,  whereby 
undertakings,  although  in  form  of  that  character,  are 
regarded  as  promises  to  answer  for  the  debt,  default  or 
miscarriage  of  the  promisor  ;  no  consideration,  however 
meritorious,  or  whatsoever  may  be  its  nature,  character 
or  effect,  will  suflace  to  enable  the  promisee  to  recover, 
unless  he  cJin  produce,  as  evidence  of  the  promise,  a  writ- 
ing satisfying  all  the  requirements  of  the  statute.  This 
remark  will  be  further  illustrated  by  a  reference  to  the 
general  rules  for  testing  the  application  of  the  statute,  con- 
tained in  the  fourth  article  of  this  chapter ;  in  which,  when- 
ever any  mention  is  made  of  the  consideration,  it  is  referred 
to  rather  as  descriptive  of  the  transaction,  than  as  a 
material  element  affecting  the  question  whether  the  case  is 
within  the  statute. 

§  55.  Therefore  no  amount  of  hardship  to  the  promisee, 
not  even  the  fact  that  he  has  lost  all  remedy  upon  a  meri- 
torious cause  of  action,  in  consequence  of  his  reliance 
upon  the  promise,  will  save  it  from  the  operation  of  the 
statute.  In  Trustees  of  Free  Schools,  etc.,  v.  Flint,  54 
Massachusetts  (13  Metcalf ),  589,  A.  J).  1847,  the  plaintiffs 
proved  at  the  trial  that  the  defendant  was  a  member  of  a 
corporation  which  was  indebted  to  the  plaintiffs,  and  had 
become  insolvent ;  that  the  members  had  adopted  a  by-law 


as  the  others ;  but  the  latter  is  not  specially  referred  to  with  the  rest, 
because  the  fact  that  the  discharge  was  the  consideration  of  the  promise  is 
believed  to  be  immaterial.  For  the  rule  is  equally  applicable,  when  the  con- 
sideration of  the  promise  was  something  else ;  provided  that  the  debt  was 
in  fact  discharged  when  the  promise  was  made,  or  was  to  be  discharged 
under  such  circumstances  that  an  agreement  to  discharge  it  will  suffice  to 
satisfy  the  rule;  a  question  discussed  in  a  subsequent  chapter 


Art.  ri.]  Collateral  Undertakings,  139 

pledging  themselves  to  be  individually  liable  for  the  debts 
of  the  corporation  ;  that  the  defendant  himself  had  repre- 
sented to  other  creditors  that  the  members  were  personally 
liable  for  the  debts,  and  had  handed  them  printed  copies 
of  the  by-laws,  upon  which  assurance  they  had  advanced 
money  to  the  corporation  ;  and  that  the  defendant  as  treas- 
urer of  the  corporation,  executed  the  note  upon  which  the 
plaintiffs'  demand  was  founded,  in  consideration  of  money 
advanced  to  it  by  the  plaintiffs,  through  the  defendant,  as 
their  treasurer ;  but  it  was  held,  upon  a  case  reserved,  that 
he  was  not  liable  under  the  statute. 

§  66.  And  in  Rogers  v.  Roger s^  6  Jones  (North  Carolina), 
300,  A.  D.  1859,  the  defendant's  son  had  been  imprisoned 
at  Wilmington  upon  a  charge  of  forgery ;  and  the  plaintiff, 
at  the  son's  request,  went  from  his  home,  at  a  distance,  to 
Wilmington ;  procured  a  person  at  Raleigh,  named  Buf- 
falow  to  consent  to  unite  with  him  in  becoming  bail  for 
the  son,  provided  the  defendant  would  indemnify  him  ; 
and  went  to  the  defendant's  house,  at  a  distance  in  another 
direction,  to  procure  him  to  execute  the  bond  of  indemnity. 
While  there,  the  plaintiff  expressed  a  fear  that  he  would 
lose  a  debt  which  the  son  owed  him ;  whereupon  the 
defendant  replied  "that  if  the  plaintiff  would  go  to  Wil- 
mington with  Buffaiow  and  become  the  bail  of  his  son,  he 
should  lose  nothing  by  what  he  had  done  or  might  do  for 
him;"  and  afterwards,  on  the  plaintiff  requesting  him  to 
put  this  promise  in  writing,  he  answered  that  his  word 
was  as  good  as  his  bond,  and  called  upon  a  witness  present 
to  take  notice ;  and  then  repeated  the  promise,  \Ai\\  the 
addition  that  all  the  debts  which  the  son  owed  the  plaintiff 
should  be  paid.  The  plaintiff  went  to  Wilmington  with 
Buffaiow,  and  they  became  bail  accordingly  for  the  son; 
and  the  son  being  detained  by  writs  in  civil  cases,  which 
had  been  issued  in  the  mean  time,  the  defendant  sent  an 
agent,  who,  acting  under  a  power  of  attorney  from  the 
plaintiff,  compromised  the  debts  upon  which  he  was 
arrested,  so  that  the  son  was  discharged ;  whereupon  he 
left  the  State  and  did  not  return.     In  an  action  upon  the 


140  Collateral  Undertakings.  [Ch.  ii. 

promise,  it  was  held  that  so  much  of  the  promise  as  related 
to  the  debt  then  due  by  the  son  was  within  the  statute, 
and  there  having  been  a  payment  of  forty  or  fifty  dollars 
made  by  the  defendant,  on  account  of  the  expenses  of  the 
journey,  which,  for  aught  the  court  could  see  from  the 
evidence,  was  sufficient  for  that  purpose,  no  notice  to 
the  contrary  ever  having  been  given  to  the  defendant ;  it 
was  held  that  the  judge  at  the  trial  correctly  charged  the 
jury  that  the  defendant  was  not  liable ;  and  a  judgment 
for  the  defendant  was  accordingly  affirmed  on  appeal. 

§  67.  So  in  Hill  v.  Doughty,  11  Iredell  (North  Carolina), 
195,  A.  D.  1850,  the  two  defendants  and  their  sister 
were  equitably  liable  to  refund  to  the  plaintiff,  a  creditor 
of  their  father,  so  much  of  the  distributive  shares  of  their 
father' s  estate  received  by  them,  as  might  be  required  to 
pay  the*  plaintiff' s  demand ;  and  in  consideration  of  for- 
bearance on  the  part  of  the  plaintiff,  to  take  proceedings 
to  compel  the  defendants  so  to  refund,  they  verbally  prom- 
ised to  pay  the  debt ;  and  it  was  held  that  the  promise  of 
each  was  void  as  to  all  but  his  one-third  of  the  debt,  and 
a  joint  promise  by  both  was  void  in  toto.(e) 

§  58.  Of  the  numerous  cases  where  the  promise  was  held 
to  be  within  the  statute,  when  founded  upon  a  considera- 
tion moving  to  the  third  person,  it  will  be  sufficient  to  cite 
only  a  few.  Thus,  where  the  consideration  was  an  exten- 
sion of  the  time  for  payment  of  the  debt,  by  the  third 
person,  or  forbearance  to  sue  him,  either  generally,  or  for 
a  limited  time,(/)or  forbearing  to  distrain  for  rent  upon 

(e)  Compare  this  case  with  Templetons  v.  Bascom,  33  Vermont,  132. 
Both  are  fully  cited  hereafter. 

(/)  Caston  V.  Moss,  1  Bailey  (South  Carolina),  14 ;  Kirkham  v.  Marter, 
2  Barnewall  and  Alderson,  613;  Rothery  v.  Curry,  Buller's  Nisi  Prius,  281; 
Bennett  v.  Pratt,  4  Denio  (New  York),  275;  Simpson  v.  Patten,  4  Johnson 
(New  York),  422 ;  Jackson  v.  Rayner,  12  Johnson  (New  York),  291 ;  But- 
ton V.  Thrailkill,-5  Jones  (North  Carohna),  329 ;  Dexter  i;.  Blanchard,  93 
Massachusetts  (11  Allen),  365;  Musick  v.  Musick,  7  Missouri,  495;  Scott  v. 
Thomas,  1  Scammon  (Illinois),  58;  Kins,'  v.  Wilson,  2  Strange,  873;  Smith 
V.  Ives,  15  Wendell  (Ne\^  York),  182;  Packer  v.  Willson,15  Wendell  (New 
York),  343. 


Art.  II.]  Collateral  Undertakings.  141 

Ms  property  (the  defendant  having  no  personal  interest 
therein),  (^)  or  forbearing  to  issue  an  attachment  against 
h.im,{7i)eveTi  although  in  consequence  of  such  forbearance, 
upon  the  faith  of  the  promise,  the  debt  was  ultimately  lost 
to  the  promisee  ;{i)  or  discontinuing  or  staying  a  suit 
already  commenced  against  him,(^")  or  forbearing  to  issue 
an  execution  upon  judgment  recovered  against  him,  (A:) 
or  releasing  the  levy  of  an  execution  or  attachment  against 
his  property,(Z)  or  surrendering  to  him  a  pledge,  or  a  lien 
upon  his  property  ;(m)  in  each  of  these  cases,  the  consid- 
eration, however  meritorious,  has  been  held  to  be  insuffi- 
cient to  enable  the  promisee  to  maintain  an  action  upon 


(y)  Thomas  v.  Williams,  10  Barnewall  and  Cresswell,  664. 

(h)  Jones  V.  Walker,  13  B.  Monroe  (Kentucky),  356;  Watson  v.  Randall, 

20  Wendell  (New  York),  201. 

(i)  Westheimer  v.  Peacock,  2  Iowa,  528 ;  Rogers  v.  Rogers,  6  Jones 
(North  Carolina),  300;  but  see  Larapson  v.  Hobart,  28  Vermont,  697,  and 
Templetons  v.  Bascom,  33  Vermont,  132,  commented  upon  in  chapter  xvii. 

(j)  Tomlinson  v.  Gell,  6  Adolphus  and  Ellis,  564;  Saunders  v,  Wakefield, 
4  Barnewall  and  Alderson,  595 ;  Cole  v.  Dyer,  1  Crompton  and  Jervis,  461'; 
Rowe  V.  Whiltier,  21  Maine,  545;  Nelson  v.  Boynton,  44  Massachusetts 
(3  Metcalf),  396;  Chater  v.  Beckett,  7  Term  Reports,  201;  Fish  v.  Hutchin- 
son, 2  Wilson,  94. 

(Je)  Russell  v.  Babcock,  14.  Maine,  138,  as  explained  in  Hilton  v.  Dinsmore, 

21  Maine,  410;  Durham  v.  Arledge,  1  Strobhart  (South  Carolina),  5;  Alls- 
house  V.  Ramsay,  6  Wharton  (Pennsylvania),  331;  Caperton  v.  Gray,  4 
Yerger  (Tennessee),  563. 

(!)  Boyce  v.  Owens,  2  McCord  (South  Carolina),  208;  Nelson  v.  Boynton, 
44  Massachusetts  (3  Metcalf),  396;  Lieber  v.  Levy,  3  Metcalfe  (Kentucky), 
292 ;  Stern  v.  Drinker,  2  E.  D.  Smith  (New  York),  401.  But  there  is  a 
question  whether  the  release  of  a  sufficient  levy,  under  an  execution,  would 
not  have  the  effect  to  discharge  the  debt  and  to  take  the  promise  out  of  the 
statute  for  that  reason ;  which  is  discussed  in  a  subsequent  chapter.  And  it  has 
been  said  in  one  case  that  such  was  the  effect  of  the  release  of  a  levy  under 
a  domestic  attachment,  Tindal  v.  Touchberry,  3  Strobhart  (South  Carolina), 
177  ;  but  doubtless  this  remark  is  based  upon  some  peculiarity  of  the  local 
law. 

(m)  Per  Gray,  J.,  Furbish  v.  Goodnow,  98  Massachusett<!,  296;  Corkins  v. 
Collins,  16  Michigan,  478;  Clancy  v.  Piggott,  4  Nevile  and  Manning,  496; 
Mallory  v.  Gillett,  21  New  York,  412. 


142  Collateral  Undertakings.  [Ch.  n. 

the  promisor' s  verbal  undertaking  to  pay  the  debt,  either 
generally  or  within  a  limited  time. 

§  59,  Nor  will  it  suffice  to  take  out  of  the  statute  a  prom- 
ise to  answer  for  the  debt  of  another,  that  the  promisor 
himself  received  the  benefit  of  the  consideration,  even  if  it 
enured  to  his  benefit  exclusively.  Thus  in  Fowler  v. 
Moller,  4  Bosworth,  149,  the.  New  York  Superior  Court 
held  that  a  promise  made  by  the  assignee  of  a  lease,  to  the 
landlord,  in  consideration  that  the  latter  would  allow  him 
to  remain  upon  the  premises,  until  he  could  dispose  of  a 
stock  of  goods  also  assigned  to  him  by  the  lessor ;  to  the 
effect  that  he  would  pay  the  arrears  of  rent  due  from  his 
assignor,  was  within  the  statute,  and  void  because  not  in 
writing.  So  in  Emmet  v.  DewJiurst,  3  MacNaghten  and 
Gordon,  587,  the  consideration  of  the  promise  was  an  act 
which  had  a  direct  tendency  to  reduce  the  amount  of 
money  for  which  the  promisor  had  become  liable.  So,  in 
Blake  v.  Parlin,  22  Maine,  395,  the  defendant  lived  with 
her  son,  who  had  verbally  hired  a  house  from  the  plaintiff; 
and  while  they  were  moving  in,  the  plaintiff  called  at  the 
house,  and  refused  to  allow  them  to  go  in,  unless  the 
defendant  would  agree  to  see  that  the  rent  was  paid,  to 
which  she  verbally  assented,  and  her  promise  was  held  to 
be  within  the  statute.  But  it  is  unnecessary  to  multiply 
these  citations,  as  similar  cases  will  be  found  scattered  in 
great  profusion  throughout  the  succeeding  pages  under 
nearly  every  rule  hereafter  to  be  discussed. 

§  60.  On  the  other  hand,  where  the  promise  is  of  such  a 
character,  and  made  under  such  circumstances,  that  it  is 
deemed  an  original  promise,  the  fact  that  the  promisor 
derived  no  benefit  whatever  from  the  consideration,  and 
that  it  enured,  with  the  knowledge  of  the  promisee,  exclus- 
ively to  the  benefit  of  the  third  person,  will  not  bring  the 
case  within  the  statute.  The  circumstance  is  only  material 
in  its  bearing  upon  the  question  whether  the  promise  was 
in  fa.ct  original  or  collateral.  The  principles  regulating 
this  class  of  promises  form  the  subject  of  discussion  in 


Art.  III.]         Collateral  Undertakings.  143 

those  chapters  of  this  work,  devoted  to  the  consideration 
of  the  third  and  fourth  general  rules,  which  are  so 
crowded  with  cases  illustrating  the  doctrine  just  adverted 
to,  that  it  would  be  useless  to  attempt  to  collect  them  again 
in  this  place. (ti) 


ARTICLE  III. 

General  classification  of  oases,  apparently  or  actually  within  the  terms  of  this  clause  of  the 
statute,  where  verbal  promises  are  nevertheless  valid 

§  61.  There  have  been  very  few  attempts  to  classify  the 
cases  arising  under  the  second  clause  of  the  fourth  section 
of  the  statute  of  frauds,  so  as  to  arrange  those  which  are 
akin  to  each  other,  under  the  distinctive  principles  or 
rules  upon  which  they  respectively  depend.  This  has 
been  partly  the  cause,  and  partly  the  effect  of  the  con- 
fusion which  now  prevails  in  this  branch  of  the  law  ;  and 
it  is  much  to  be  regretted  that  the  task  was  not  attempted 
at  an  earlier  day,  when  the  cases  were  fewer  and  less  dis- 
cordant than  they  now  are.  It  might  then  have  been 
practicable  for  a  judge  or  a  commentator,  possessing  the 
requisite  ability  and  reputation,  to  lay  down  a  series  of 
principles  regulating  the  application  of  the  statute,  which 
would  have  commanded  general  recognition,  as  a  standard 
by  which  cases  would  be  tested ;  and  under  which  they 
would  have  been  ranged  by  the  courts  in  their  proper 
places,  as  they  should  subsequently  present  themselves 
for  examination  and  decision  ;  thereby  avoiding  much  of 
the  incoherence  of  argument  and  conflict  of  authority 
which  has  now  become  incurable.  For  want  of  such  a 
standard,  many  causes  have  been  decided  without  due 
consideration,  upon  grounds  which,  although  apparently 
satisfactory  in  the  particular  case,  would  not  bear  expan- 

(n)  In  the  following  cases  the  principle,  which  is  involved,  without  being 
always  specially  mentioned,  in  the  numerous  others  cited  in  the  chapters 
referred  to,  is  expressly  laid  down:  Faires  v.  Lodanc,  10  Alabnma,  50; 
IBackus  V.  Clark,  1  Kansas,  303 ;  Proprietors  Upper  Locks  v.  Abbott,  14 
New  Hampshire,  157;  Brown  v.  George,  17  New  Hampshire,  128. 


144  COLLATEEAL  UNDERTAKINGS.  [Ch.  II, 

sion  into  a  general  principle.  Every  such  case  has,  of 
course,  added  to  the  existing  confusion.  Hence  it  has 
resulted  that  nearly  all  the  rules  appertaining  to  this  sub- 
ject, which  may  be  called  settled,  have  been  very  slowly 
developed ;  and  most  of  them  have  been  adopted,  only  after 
great  fluctuation  of  opinion,  amounting  frequently  to  a 
complete  reversal  of  the  course  of  decision  which  prevailed 
for  a  long  time ;  many  principles  upon  which  the  solution 
of  the  most  important  questions  depends,  are  to  this  day 
obscure  and  uncertain  in  their  terms  and  in  their  applica- 
tion ;  and,  with  respect  to  other  questions  of  vital  import- 
ance, and  of  constant  practical  occurrence,  the  cases  are 
still  so  discordant  and  conflicting  that  no  principle  is  defi- 
nitely settled.  To  some  extent  this  is  true  in  every  depart- 
ment of  legal  science  ;  but  in  none  other  are  these  incon- 
veniences and  disorders  so  numerous  or  so  glaring,  as  in 
that  of  which  we  are  now  treating.  The  evil  has  now 
become  so  great  that  it  is  in  a  great  measure  remediless  ; 
for  it  is  no  longer  possible  that  this  branch  of  the  law 
should  be  thoroughly  and  systematically  digested. 

§  62.  Mr.  Roberts'  s  work,  which  is  the  only  treatise  exclu- 
sively devoted  to  the  statute  ever  published  in  England, 
although  in  many  respects  valuable,  really  contains  only 
one  correct  and  well  defined  principle  regulating  the  appli- 
cation of  the  statute  to  collateral  undertakings ;  namely, 
that  where  the  promise  does  not  relate  to  a  precedent 
liability  of  the  third  person,  the  question  whether  it  is 
original  or  collateral,  depends  upon  whether  the  third 
person  incurred  any  liability,  concurrently  with  the  prom- 
isor \{a)  and  to  this  day  the  recognized  standard  in  England 
is  the  collection  of  notes,  written  at  diflferent  times,  ap- 
pended to  the  case  of  Forth  v,  Stanton,  on  page  211  of  the 
first  volutoe  of  Saunders' s  Reports,  an  annotated  edition 
of  which  was  first  prepared  by  Mr.   Serjeant  Williams, 

(a)  ''In  discussing  this  critical  part  of  the  statute,  though  much   has  of 
necessity  been  left  to  float  on  the  facts  and  circumstances  of  the  particular 
cases,  one  anchorage  has  at  least  been  gained,  viz. :  that  the  person  under, 
taken  for  must  be  or  become  liable  at  the  time  the  promise  by  the  third  ' 
person  is  made."     Roberts  on  Frauds,  page  224. 


Art.  III.]  Collateral  Undertakings.  145 

and  has  since  been  continued  from  time  to  time  by  Mr. 
Justice  Piitteson  and  Mr.  Justice  Williams.  The  case  itself 
is  so  far  from  being  an  authority  under  the  statute  of  frauds, 
that  it  was  d(H;ided  before  tlie  statute  was  enacted  ;  and  the 
notes,  though  written  by  very  distinguished  jurists,  and 
well  deserving  the  high  estimation  in  which  they  are  lield, 
make  no  pretence  of  classifying  the  cases,  or  even  of  an 
orderly  and  systematic  arrangement  of  the  authorities 
cited,  or  the  subjects  considered. 

§  63.  In  the  United  States,  Mr.  Chief  Justice  (afterwards 
Chancellor)  Kent  rendered  the  profession  a  signal  service, 
by  a  classification  of  the  cases  made  in  the  course  of  his 
opinion,  delivered  in  Leonard  v.  Vreclenhurgh,  8  Johnson 
(New  York),  23,  A.  D.  1811.  The  favor  with  which  it  was 
received,  notwithstanding  its -incompleteness,  proved  how 
urgent  was  the  need  which  it  supplied.  For  a  long  series 
of  years,  the  test  of  the  application  of  the  statute,  through- 
oiit  the  United  States,  was  to  ascertain  in  which  of  Chan- 
cellor Kent's  three  classes  the  particular  case  belonged. 
The  following  extract  contains  the  entire  classification 
referred  to:  "There  are,  then,  three  distinct  classes  of 
cases  on  this  subject,  which  require  to  be  discriminated ; 
1.  Cases  in  which  the  guaranty  or  promise  is  collateral  to 
the  principal  contract,  but  is  made  at  the  same  time,  and 
becomes  an  essential  ground  of  the  credit  given  to  the 
principal  or  direct  debtor.  Here,  as  we  have  already  seen, 
is  not,  nor  need  be,  any  other  consideration,  than  that 
moving  between  the  creditor  and  original  debtor.  2.  Cases 
in  which  the  collateral  undertaking  is  subsequent  to  the 
creation  of  the  debt,  and  was  not  the  inducement  to  it, 
though  the  subsisting  liability  is  the  ground  of  the  prom- 
ise, without  any  distinct  and  unconnected  inducement. 
Here  there  must  be  some  further  consideration  shown, 
having  an  immediate  respect  to  such  liability,  for  the  con- 
sideration for  the  original  debt  will  not  attach  to  this  sub- 
sequent promise.  3.  A  third  class  of  cases,  and  to  which 
I  have  already  alluded,  is  when  the  promise  to  pay  the 
debt  of  another  arises  out  of  some  new  and  original  con- 
19 


146  Collateral  Undertakings.  [Cli.  ii. 

sideration  of  benefit  or  harm,  moving  between  the  newly 
contracting  parties.  The  two  first  classes  of  cases  are 
•within  the  statute  of  frauds,  but  the  last  is  not." 

§  64.  This  classification,  however,  falls  short  of  including 
a  large  number  of  cases,  and  the  principle  which  is  stated 
as  governing  the  third  class  has  led  to  considerable  error, 
and  has  not  stood  the  test  of  time,  at  least  not  in  the  lan- 
guage of  the  learned  Chief  Justice.  A  much  more  com- 
plete classification  is  to  be  found  at  the  conclusion  of  the 
opinion  of  Comstock,  C.  J.,  delivered  in  the  year  1860,  in 
Mallory  v.  Gillette  21  New  York,  412,  on  pages  432  and 
433,  as  follows:  "Without  pursuing  this  discussion  fur- 
ther, the  general  rule  is,  that  all  promises  to  answer  for  the 
debt  or  default  of  a  third  person  must  be  in  wiiting, 
whether  the  promise  be  made  before,  at  the  time,  or  after 
the  debt  or  liability  is  created.  Such  is  the  rule,  because 
so  is  the  statute  of  frauds.  The  statute  makes  no  excep- 
tion of  any  promise  which  is  of  that  character.  The 
courts  have  made  no  exceptions ;  as  clearly  they  should 
not.  But  a  considerable  variety  of  undertakings,  having 
points  of  resemblance  and  analogy  to  such  promises,  have 
been  held  not  to  be  within  the  statute.  These  may  be 
chiefly,  if  not  wholly,  arranged  in  the  following  classes : 
1.  Where  there  was  no  original  debt  to  which  the  auxiliary 
promise  could  be  collateral ;  for  example,  where  the  prom- 
isee was  a  mere  guarantor  for  the  third  person  to  some  one 
else,  and  the  promisor  agrees  to  indemnify  him  ;  or  where 
his  demand  was  founded  in  a  pure  tort.  2.  Where  the 
original  debt  becomes  extinguished,  and  the  creditor  has 
only  the  new  promise  to  rely  upon ;  for  example,  where 
such  new  undertaking  is  accepted  as  a  substitute  for  the 
original  demand  ;  or  where  the  original  demand  is  deemed 
satisfied  by  the  arrest  of  the  debtor's  body  or  a  levy  on 
his  goods,  the  arrest  or  levy  being  discharged  by  the  cred- 
itor's  consent.  3.  Where,  although  the  debt  remains,  the 
promise  is  founded  on  a  new  consideration  which  moves  to 
the  promisor.  This  consideration  may  conie  from  the 
debtor,  as  where  he  puts  a  fund  in  the  hands  of  the  prom- 


Art.  III.]  Collateral  Undertakings.  147 

isee"  (promisor),  •  "either  by  absolute  transfer,  or  upon  a 
trust  to  pay  the  debt ;  or  it  may  be  in  his  hands,  charged 
with  the  debt  as  a  prior  lien,  as  in  the  case  of  Williams 
V.  Lepei\  and  many  others.  So  the  consideration  may 
originate  in  a  new  and  independent  dealing  between  the 
promisor  and  the  creditor,  the  undertaking  to  answer  for 
the  debt  of  another  being  one  of  the  incidents  of  that 
dealing.  Thus  A,  for  any  compensation  agreed  on 
between  him  and  B,  may  undertake  that  C  shall  pay  his 
debt  to  B.  So  A,  liimself  being  the  creditor  of  C,  may 
transfer  the  obligation  to  B  upon  any  sufficient  considera- 
tion, and  guaranty  it  by  parol.  If  we  go  beyond  these 
exceptional  and  peculiar  cases,  and  withdraw  from  the 
statute  all  promises  of  this  nature,  where  the  debtor  alone 
is  benefited  by  the  consideration  of  the  new  undertaking, 
and  the  debt  still  subsists ;  then  we  leave  absolutely 
nothing  for  the  statute  to  operate  upon." 

§  65.  This  classification,  unlike  Chancellor  Kent's,  which 
includes  cases  within  as  well  as  without  the  statute,  is  con- 
fined entirely  to  the  latter  ;  but  it  is,  of  course,  sufiicient  to 
classify  either  kind  of  cases  alone,  provided  the  work  is 
done  so  exactly  and  comprehensively,  as  to  leave  all  those 
not  embraced  in  the  classification,  to  fall  within  the  other 
kind.  With  respect  to  the  classification  in  question, 
it  is  believed  to  be  so  far  complete,  that  there  is  a  place 
within  it  for  every  case  where  a  verbal  promise  is  sufficient 
to  lay  the  foundation  of  an  action  ;  but  it  is  open  to  the 
objection,  inseparable,  perhaps,  from  the  condensation 
necessary  in  a  judicial  opinion,  that  the  language  is  so 
general,  as  not  only  to  prevent  it  from  being  of  much 
practical  use,  but  also  to  leave  room  for  some  cases  to 
creep  in  where  the  true  construction  of  the  statute  requires 
the  promise  to  be  m  writing.  Indeed,  a  closer  examination 
of  the  terms  of  this  classification  will  reveal  the  fact,  that 
its  completeness  is  owing  to  the  great  elasticity  of  the 
definition  of  the  first  class,  which  is  very  far  from  being 
equivalent  to  Mr.  Roberts's  proposition,  or  to  the  third  of 
the  general  rules,  under  which  the  cases  are  arranged  in 


148  Collateral  Uis^dektakings.  [Ch.  ii. 

this  volume  ;  but  on  tlie  contrary  is  scarcely  more  definite, 
either  with  respect  to  the  language  used,  or  the  meaning 
of  its  learned  author,  than  if  he  had  repeated  the  words 
of  the  statute  itself.  (5) 

(6)  It  is  a  striking  illustration  of  the  extreme  difficulty  of  classifying  the 
cases,  that,  while  the  body  of  this  long  and  important  opinion  has  received 
the  highest  encomiums  in  subsequent  cases,  the  illustrations,  whereby  the 
learned  Chief  Justice  explains  the  terms  upon  which  his  classification  depends, 
have  already  been  dissented  from  in  two  cases  cited  fully  hereafter.  FuUam 
V.  Adams,  37  Yermont,  391,  expressly  overrules  one  of  the  propositions 
of  the  third  class;  and  in  Baker  v.  Dillman,  12  Abbott's  Practice  Reports,  313, 
and  21  Howard's  Practice  Reports,  444,  the  New  York  Supreme 
Court,  refused  to  be  bound  by  the  proposition  illustrating  the  first  class, 
holding  that  it  was  obiter,  and  not  sustained  by  the  authorities.  Another 
instance  of  an  attempt  at  classification  by -a  very  able  writer,  based  upon 
that  of  Chief  Justice  Kent,  but  which  was  afterwards  abandoned  by  its  author, 
is  to  be  found  in  the  first  edition  of  the  American  notes  to  Smith's  Leading 
Cases,  vol.  1,  page  329,  as  follows:  "The  most  natural  division  of  the  cases 
which  arise  under  the  statute  of  frauds,  is  into  those  in  which  the  engage- 
ment of  the  promise  is  given  at  or  before  the  creation  of  the  debt,  and  those 
in  which  it  is  given  subsequently.  The  second  class  has  again  been  subdi- 
vided into  two  others;  those  in  which  the  promise  is  given  upon  a  consid- 
eration growing  out  of  the  debt  itself,  and  those  in  which  the  considera- 
tion is  new  and  distinct  in  its  nature."  But  in  the  sixth  edition  the 
author  merely  says  that  the  cases  have  been  so  classified,  and  he  adds: 
"  But  although  this  classification  has  been  frequently  cited  with  approbation, 
and  may  be  used  to  group  and  methodize  the  decisions,  we  may  doubt 
whether  any  valid  distinction  exists,  so  far  as  the  operation  of  the  statute  is 
concerned,  between  those  cases  where  the  debt  agreed  to  be  paid  is  ante- 
cedent, and  those  where  it  is  contemporaneoue."  An  enumeration,  rather 
than  a  classification,  of  cases  not  within  the  statute,  is  also  to  be  found  in  the 
opinion  of  Bell,  C.  J.,  delivered  in  Robinson  v.  G-ilman,  43  New  Hampshire, 
48-5,  as  follows:  "In  the  following  cases  the  promise  has  been  held  binding 
without  writing:  (1)  Where  the  debtor  has  put  into  the  hands  of  the  prom- 
isor the  amount  of  his  debt;  (2)  or  transferred  to  him  property  equivalent; 
(3)  or  something  of  equivalent  advantage  to  himself,  as  a  license  to  keep  a 
public  house ;  (4)  or  where  the  promisee  has  transferred  or  released  to  the 
promisor  some  interest  in  the  property  of  the  debtor ;  as  a  lien  given  by  law 
to  the  seller  for  the  price  of  goods  sold,  but  not  delivered";  or  to  a  landlord  upon 
the  goods  of  his  tenant  for  rent ;  or  of  a  bailee  for  services ;  or  of  an  insurance 
agent  on  policies  in  his  hands ;  (5)  or  where  the  promisee  has  released  to  the 
promisor  and  holder  of  the  property  an  attachment;  or  a  trustee  process; 
(6)  or  where  he  has  released  to  the  promisor  the  right  to  attach  property  of 
the  debtor ;  or  to  bring  a  suit  in  the  admiralty  to  enforce  a  lien  ;  or  to  biing 
a  trustee  suit  against  a  party  having  funds  of  the  debtor  in  his  hands,'' 


Art.  III.]  Collateral  Undertakinos.  149 

§  66-.  As  these  attempts  at  classification  have  proved  to 
be  faulty,  notwitli standing  the  acknowledged  learning  and 
ability  of  their  framers,  perhaps  the  difficulty  may  be  in  a 
measure  traceable  to  the  fact,  that  the  basis  of  each  of  them 
consisted,  at  least  in  part,  of  incidental  features  of  the 
cases,  rather  than  the  distinctive  principles  which  take 
certain  promises  out  of  the  statute.  Chief  Justice  Kent' s 
classes  depend,  first,  upon  the  time  when  each  promise 
was  made  with  respect  to  the  other,  and  secondly,  upon 
the  nature  of  the  consideration  or  the  persons  between 
whom  it  moved.  Whether  the  second  promise  was  made 
simultaneously  with,  or  subsequently  to  the  making  of 
the  first,  is  entirely  immaterial  upon  the  question  wliether 
the  statute  is  applicable  ;  and  the  same  is  true  of  all  ques- 
tions appertaining  to  the  consideration,  as  was  stated  in 
the  last  article,  except  so  far  as  they  may  shed  light  upon 
the  character  of  the  promise.  The  classification  of  Chief 
Justice  Comstock,  on  the  other  hand,  whatever  may  be  its 
imperfections  of  detail,  commences  very  correctly  with 
adopting,  as  the  basis  of  its  first  two  terms,  principles 
upon  which  promises  are  taken  out  of  the  statute  ;  but  it 
fails  in  its  third  term,  which  depends  upon  something 
connected  with  the  immaterial  feature  of  the  consideration. 

§  67.  Possibly,  therefore,  a  nearer  approach  to  the  desid- 
eratum may  be  reached,  by  means  of  a  classification  of 
%ases  without  the  statute,  depending  entirely  upon  the 
principles  by  which  they  are  respectively  regarded  as 
being  excluded  fi*om  its  provisions  ;  using  the  incidental 
characteristics,  such  as  the  order  of  time  in  whicli  the 
promise  was  made,  with  respect  to  the  supposed  original 
liability,  and  all  questions  connected  with  the  considera- 
tion, with  other  convenient  matters,  as  grounds  for  the 
formation  of  sub-classes,  or  as  illustrations  of  the  applica- 
tion of  a  general  principle,  or  as  the  distinguishing  features 
of  limitations  or  exceptions  to  its  operation.  It  would  be 
idle,  however,  to  expect  a  perfect  and  homogeneous  sys- 
tem, as  the  result  of  the  adoption  of  that  or  any  otlier 
principle  ;  for  the  materials  with  which  the  work  must  bo 


160  COLLATEEAL  UNDERTAKINGS.  [Ch.  IL 

done,  render  sncli  result  impossible  of  attainment,  what- 
ever ability,  patience  and  industry  may  be  brought  to  the 
task. 

§  68.  The  fundamental  principles,  upon  which  cases, 
having  a  resemblance  to  those  described  within  the  clause 
of  the  statute  now  under  consideration,  or  exactly  answer- 
ing that  description,  are  excluded  from  the  operation  of  the 
statutory  prohibition  of  oral  evidence  to  sustain  the  prom- 
ise, may  be  said,  in  a  general  and  comprehensive  way,  to 
be  three  in  number.     And  thereupon  we  propose  to  base 

THREE    GENERAL    DIVISIONS    OF    CASES    NOT    WITHIN    THE 

STATUTE,  each  with  its  appropriate  subdivisions  into 
classes,  as  follows : 

§  69.  First  general  division.  Cases  which  are  not 
governed  by  this  clause  of  the  statute  of  frauds,  although 
they  fall  within  its  termS;  These  consist  of  those  cases 
where  the  construction  and  validity  of  the  promise  depend, 
I.  Upon  the  law  merchant ;  or,  II.  Upon  the  provisions  of 
some  other  statute.  There  is  no  room  for  construction 
of  the  statute  in  cases  of  this  description,  as  they  are 
entirely  outside  of  it. 

§  70.  Second  general  dimsion.  Cases  which  are  not 
within  this  clause  of  the  statute,  because  the  terms  of  the 
statutory  description  of  the  promises  to  which  it  applies 
are  only  partially  satisfied.  These  are  naturally  dis- 
tributed into  classes,  depending  upon  the  particular  term 
which  is  not  satisfied,  some  of  which  admit  of  still  further 
subdivision.  They  are,  I.  Cases  where  the  promise  is  not 
"  special ;"  II.  Cases  where  the  liability,  which  the  action 
is  brought  to  enforce,  grows  out  of  something  else  than  a 
' '  promise ; ' '  III.  Cases  where  the  promise,  although  it 
relates  to  the  liability  of  a  third  person,  was  not  to 
"answer"  therefor;  IV.  Cases  where  there  was  no  origi- 
nal liability  for  a  "debt,  default  or  miscarriage,"  to 
which  the  undertaking  of  thepromisor  could  be  collateral, 
either  (1)  because  the  third  person  had  inciirred  no  corres- 


Art.  III.]  Collateral  Ui^dertakings.  151 

ponding  liability,  at  tlie  time  when  the  promise  took  effect ; 
or  (2)  because  a  previous  corresponding  liability,  incurred 
by  him,  had  been  discharged  before  thepromise  took  effect ; 
V.  Cases  where  there  was  nobody  in  the  transaction  to 
whom  the  term  "another  person"  could  apply;  either 
(1)  because  the  promise  was  to  pay  the  debt,  or  answer 
for  the  default  or  miscarriage  of  the  promisee,  to  a  person 
not  a  party  to  the  contract ;  or  (2)  because  the  promise 
was  to  answer  for  the  payment  of  a  debt  or  the  fulfilment 
of  a  duty  to  some  person,  other  than  the  promisee,  by  one 
who.  was  not  a  party  to  the  contract,  (c) 

§  71.  Third  general  dimsion.  Cases  which  are  not 
within  this  clause  of  the  statute,  although  aU  the  terms  of 
the  statutory  description  of  the  promises  to  which  it 
applies  are  literally  satisfied,  because  they  are  not  within 
its  spirit  and  intent.  Here  we  are  met  at  almost  every 
step  by  decisions,  which  clash  so  irreconcilably,  that  even 

(c)  Upon  principle  we  would  add  two  additional  subdivisions  to  this  class, 
namely:  (3)  because  the  promise  was  to  answer  for  the  debt,  default  or 
miscarriage  of  some  person  to  be  thereafter  designated  by  the  promisor;  and 
(4)  because  the  promise  w.as  to  answer  for  the  debt  of  a  deceased  person. 
The  first  of  the  subdivisions  mentioned  in  the  text,  is  the  only  one  where 
the  rule  is  settled  by  common  consent,  as  depending  upon  the  principle 
which  characterizes  the  class;  and  there  is  considerable  conflict  of  authority 
whether  particular  kinds  of  cases  come  within  that  subdivision,  as  we  shall 
see  in  the  discussion  under  the  fifth  general  rule.  The  second  subdivision 
consists  of  the  cases  where  the  promise  was  to  indemnify  the  promisee,  against 
a  liability  to  be  incurred  by  him,  at  the  request  of  the  promisor  only,  but  as 
security  for  the  fulfilment  of  a  third  person's  engagement  to  a  fourth  (see 
chapter  xiii,  article  ii),  which,  we  think,  are  shown  not  to  be  within  the 
statute,  by  the  weight  of  principle  and  authority.  Our  proposed  third  sub- 
division of  this  class  would  embrace  cases  involving  the  liability  of  a  factor, 
acting  for  the  promisee  under  a  del  credere  commission;  and  all  other 
similar  cases  where  the  promisor  is  thereafter  to  select  the  persons  for 
whose  fidelity  to  their  engagements  he  undertakes  to  be  responsible.  But 
with  respect  to  factors'  contracts,  a  sufficient  reason  may  be  assigned,  as  will 
appfear  in  the  proper  place,  for  putting  them  in  the  third  general  division; 
and  they  will  accordingly  be  found  there,  in  accordance  with  what  seems 
to  be  the  inclination  of  the  courts.  The  fourth  subdivision  would  comprise 
the  cases  already  referred  to  in  §  16. 


152  Collateral  Undertakings.  [Ch.  ii. 

tlie  principles  upon  which  the  different  classes  depend  are 
open  to  doubt.  But  we  regard  the  following  statement  of 
the  classes  within  this  division,  as  defensible  upon  the 
weight  of  reasoning  and  authority,  viz.  :  I.  Cases  where 
the  promisor  was,  or  had  been  previously  liable  for  the 
same  or  a  similar  debt  or  duty,  although  his  liability  may 
have  been  in  another  form,  or  to  another  person  ;  II.  Cases" 
where  the  promise  was  to  be  fultiUed  out  of  the  means  of 
the  debtor ;  III.  Cases  where  the  debt  assumed  by  the  - 
promise  was  already  a  charge  upon  the  property  of  the 
promisor ;  IV.  Cases  where  the  promisor  guarantied 
the  payment  by  a  third  person  of  a  debt  transferred  by 
the  promisor  to  the  promisee  ;  V.  Cases  where  the  debt 
guarantied  was  thereafter  to  be  contracted  by  the  prom- 
isor, acting  as  a  factor  for  the  promisee,  under  a  del  credere 
commission,  {d) 

(d)  The  writer  having  framed  this  classification,  without  any  suspicion 
that  it  was  not  entirely  original ;  and  adopted  it  as  the  framework  of  this 
part  of  his  undertaking  with  great  hesitation,  lest  it  should  be  regarded  as 
too  fanciful ;  is  gratified  in  finding  most  of  its  essential  principles  declared,  in 
the  opinion  of  a  learned  and  able  judge,  delivered  before  this  work  was 
planned,  but  pubhshed  as  the  present  volume  was  approaching  completion. 
In  Furbish  v.  Groodnow,  98  Massachusetts,  296,  decided  A.  D.  1867,  Gray, 
J.,  said:  "By  the  estabhshed  construction  of  this  clause  'a  special  promise,' 
in  order  to  fall  within  the  statute,  must  be  express,  and  not  merely  implied 
by  law ;  '  to  answer  for  a  debt,'  for  which  the  promisor's  person  or  estate  is 
not  already  Uable ;  '  of  another  '  than  either  of  the  parties  to  the  promise ;  and 
who,  if  already  liable  for  the  debt,  continues  so  liable.  Even  when  all  these 
elements  concur,  still  if  the  principal  and  immediate  object  of  the  transaction 
is  to  benefit  the  promisor,  not  to  secure  the  debt  of  another  person,  the 
promise  is  considered,  not  as  collateral  to  the  debt  of  another,  but  as  creating 
an  original  debt  from  the  promisor,  which  is  not  within  the  statute,  although 
one  effect  of  its  payment  may  be  to  discharge  the  debt  of  another."  (See 
the  case  abstracted  in  §  563,  564.)  We  are  compelled,  however,  to  dissent 
fi'om  the  learned  judge,  with  respect  to  the  class  of  cases,  which  he  apparently 
regards  as  the  only  one,  where  the  promise  is  without  the  intent  of  the 
statute,  although  it  is  embraced  by  its  terms.  The  diffidence  which  accom- 
panies this  dissent  is  diminished,  but  not  entirely  removed,  by  the  fact,  that 
in  confining  the  principle  to  one  class,  he  concedes. that  he  is  following  local 
precedents,  in  opposition  to  the  current  of  the  other  American  authorities ;  and 
also,  as  we  conceive,  by  the  failure  of  the  English  courts  to  recognize,  in  the 
broad  terms  stated  by  him,  the  rule  which  he  considers  to  be  the  only  correct 
one;  and  its  repudiation  in  two  recent  and  well  considered  American  cases. 


Art.  IV.]  Collateral  Undertakings.  153 

§  72.  This  classffication  constitutes  the  frame- work  of  all 
tlie  subsequent  remarks  upon  the  clause  of  the  statute  now 
under  examination  ;  but  we  have  not  regarded  its  preser- 
vation in  a  tabular  form,  throughout  the  succeeding  pages, 
as  essential  or  even  desirable.  For  several  reasons,  it  is 
more  convenient  to  jjreserve  the  distribution  of  the  text  into 
chapters,  with  appropriate  subdivisions  ;  and  in  order  to 
avoid  the  confusion  inseparable  from  two  distinct  tabular 
schemes,  only  the  three  general  divisions  will  be  retained 
in  that  form.  But  all  the  features  of  the  classification  will 
be  preserved,  as  the  next  article  will  show,  in  the  general 
rules  for  testing  the  application  of  the  statute,  in  subor- 
dination to  which  the  chapters  have  been  arranged.  And 
these  features  will  moreover  be.  constantly  kept  before  the 
reader  by  incidental  references  in  the  text. 


ARTICLE  IV. 

Rules  by  whicli  to  determine  the  validity  of  verbal  promises  under  tbis  clause  of  the 

statute. 

§  73.  The  general  rules  referred  to  in  the  preceding  sec- 
tion, by  wliich  it  is  proposed  to  test  the  application  of  this 
clause  of  the  statute,  in  accordance  with  the  principles 
upon  which  our  classification  is  based,  constitute  a  series, 
nine  in  number.  It  is  believed  that  every  case  giving  rise 
to  any  WeU.  founded  doubt,  in  which  a  correct  decision 
has  been  rendered,  excluding  a  promise  from  the  operation 
of  the  statute,  can  be  successfully  defended,  only  upon  a 
principle  embodied  in  some  one  of  these  rules  ;  and  will 
find  its  appropriate  place  as  an  illustration  of  the  applica- 
tion of  the  rule,  either  directly,  or  in  some  of  the  ramifica- 
tions to  which  its  doctrine  leads.  If  this  proposition  is 
correct,  the  corollary  follows,  that  all  cases,  which  main- 
tain and  necessarily  depend  upon  principles  not  contained 
in  any  rule  of  the  series,  have  been  erroneously  decided;  and 
if  they  have  not  been  overruled  by  subsequent  decisions, 
that  they  are  of  local  authority  merely,  and  cannot  main- 
tain a  permanent  footing  in  a  general  system  of  jurispru- 
dence. These  rules  are  designed  to  include  directl}",  only 
20 


154  Collateral  Undertakings.  [Qh.  ii. 

cases  without  tlie  statute  ;  but  in  discussing  tliem,  cases 
which  have  been  held  to  be  within  the  statute,  will  be 
cited  in  connection  with  the  others,  either  as  having 
been  erroneously  decided ;  or,  when  they  were  correctly 
decided,  because  they  forcibly  illustrate  the  principle  upon 
which  those  not  within  the  statute  depend.  And  for  the 
latter  reason  it  has  been  found  expedient  to  embrace 
both  descriptions  of  cases  within  the  terms  of  one  of  the 
rules. 

§  74.  Pursuing  the  system  of  classification  indicated  in 
the  preceding  article,  we  commence  with  the  first  general 
division  of  cases  not  within  this  clause  of  the  statute, 
being  those  which  are  not .  governed  by  it,  although  they 
fall  within  its  terms.  They  consist  of  two  classes,  both 
of  which  are  embraced  within  the  terms  of  the  first  rule, 
namely : 

EULE  FIRST. 

Contracts,  the  construction,  validity,  and  evidence  of  which  depend  upon  so  much  of  the  law 
merchant  as  the  common  law  reoognizes,  or  the  provisions  of  some  other  statute,  are  excep- 
tions to  the  operation  of  this  clause  of  the  statute  of  frauds. 

§  75.  The  second  general  division,  being  cases  which  are 
not  within  this  clause,  because  the  terms  of  the  statutory 
description  of  the  promises  to  which  it  applies  are  only 
partially  satisfied,  consists  of  several  classes.  The  first 
class,  comprising  those  where  the  promise  was  not 
"special;"  the  second,  those  where  the  liability  wliich 
the  action  is  brought  to  enforce,  grows  out  of  something 
else  than  a  "promise;"  and  the  third,  those  where  the 
promise,  although  it  relates  to  the  liability  of  a  third  per- 
son was  not  to  "answer"  therefor,  maybe  conveniently 
included  in  one  rule,  which  is  as  follows : 

RULE   SECOND. 

The  statute  does  not  apply  to  implied  promises  j  or  to  liabilities  for  deceitful  representations^ 
whereby  the  third  person  gained  credit ;  or  to  promises  to  do  some  act  for  the  security  of  a 
creditor  of  a  third  person,  other  than  the  absolute  or  contingent  assumption  of  the  debt  by 
the  promisor. 

§  76.  The  fourth  class  of  the  second  general  division 
consists  of  cases  where  there  was  no  original  liability  for 


Art.  IV.]  Collateral  Undertakings.  155 

a  "debt,  default  or  miscarriage,"  to  which  the.  under- 
taking of  the  promisor  could  be  collateral.  These  are 
very  numerous,  and  present  several  perplexing  and 
some  unsettled  questions ;  hence  a  full  examination  of 
this  subject  will  consume  much  time  and  space.  It  was 
said  that  this  class  admits  of  two  subdivisions  depend- 
ing upon  the  different  circumstances,  which  prevented 
the  simultaneous  existence  of  an  original  and  collateral 
liability ;  and  to  each  of  these  subdivisions  a  separate 
rule  is  assigned. 

§  77.  Those  cases  where  the  question  is  whether  the  third 
person  had  incurred  any  liability  corresponding  with  that 
assumed  by  the  promisor,  are  governed  by 

RULE  THIRD. 

Where  there  was  no  antecedent  liability  of  the  third  person,  and  the  promise  was  founded  upon 
a  consideration  moTing  to  him,  it  is  without  the  statute  if  the  third  person  did  not  become 
liable  to  the  promisee,  together  with  the  promisor ;  and  vice  versa,  if  he  did  so  become 
liable,  it  is  within  the  statutOi 

§  78.  Those  cases  where  the  third  person  had  previously 
incurred  a  liability  corresponding  with  that  assumed  by 
the  promisor,  but  such  liability  had  been  discharged  before 
the  promise  took  effect,  are  governed  by 

RULE  FOURTH. 

A  promise  to  assume  an  antecedent  liability  of  a  third  person  is  without  the  statute,  if  the 
third  person's  liability  had  become  extinct,  at  the  time  when  that  of  the  promisor  came 
into  existence  I 

§  79.  The  fifth  class  of  the  second  general  division 
consists  of  those  cases  where  there  was  nobody  in  the 
transaction,  to  whom  the  term  "another  person"  could 
apply.  They  are  taken  out  of  the  statute  by  the  opera- 
tion of  a  rule,  the  terms  of  which  are  well  settled, 
although  its  practical  application  is  attended  with  con- 
siderable embarrassment  in  some  particular  kinds  of  cases. 
It  is  as  follows  : 

RULE   FIFTH. 

A  promise  to  discharge  the  debt  or  duty  of  another  is  not  within  the  statute,  unless  it  was 
made  to  the  person  to  whom  the  debt  or  duty  was  to  be  discharged. 


156  COLLATEEAL   UNDERTAKINGS.  [Ch.  II. 

§  80.  We  now  come  to  the  third  general  division,  which 
embraces  cases  not  within  this  clause  of  the  statute, 
although  all  the  terms  of  the  statutory  description  of  the 
promises  to  which  it  applies  are  satisfied,  because  they 
are  not  within  its  spirit  and  intent.  The  classes  which  we 
have  assigned  to  this  general  division,  after  a  careful 
examination  of  the  many  conflicting  decisions  thereon, 
are  five  in  number.  The  first  consists  of  those  cases  where 
the  promisor  was,  or  had  been  previously  liable  for  the 
same  or  a  similar  debt  or  duty ;  and  they  depend  upon 
the  following  rule : 

RULE   SIXTH. 

A  promise  is  without  tie  statutei  if  its  effect  was  merely  to  remove  some  impediment  to 
the  enforcement  hy  the  promisee,  of  a  liability  already  resting  upon  the  promisor,  in  the 
same  or  some  other  form ;  although  its  fulfilment  will  necessarily  result  in  the  discharge 
of  the  precedent  liability  of  a  third  person  to  the  promisee. 

§  81.  The  second  class  of  the  third  general  division  com- 
prises cas?^s  where  the  promise  was  to  be  fulfiled  out  of 
the  means  of  the  debtor;  and  the  principle  applicable 
thereto  is  embodied  in 

RULE   SEVENTH. 

A  promise  to  pay  the  pre-existing  debt  of  a  third  person  to  the  promisee  is  not  within  the 
statute,  if  the  substantial  effect  of  its  fulfilment  will  be  to  discharge  the  debt,  out  of  a 
fund  furnished  to  the  promisor  by  the  debtor,  in  contemplation  of  which  the  promise  was 
made, 

• 

^  82.  The  third  class  has  been  limited,  contrary  to 
opinions  expressed  in  a  large  number  of  the  most  respecta- 
ble American  authorities,  which  favor  a  much  greater 
amplification  of  its  terms,  to  cases  where  the  debt 
assumed  by  the  promise,  was  already  a  charge  upon  the 
property  of  the  promisor.  We  think  that,  upon  principle, 
all  such  cases  are  without  the  statute,  whatever  may  have 
been  the  consideration  of  the  promise ;  and  such  is, 
according  to  our  understanding,  the  doctrine  of  the  Eng- 
lish decisions.  But  the  American  authorities  seem  to 
agree,  in  regarding  the  abandonment  of  the  charge  as  a 
material  element  of  the  validity  of  the  promise,  and  the 
rule  has  consequently  been  framed,  in  deference  to  this 
opinion,  in  the  following  terms  : 


Art.  IV.]  CoLLATEEAL  Undeetakings.  157 

RULE   EIGHTH. 

A  promise  to  pay  tie  debt  of  another  is  not  within  the  statnte,  if  its  consideration  was  the 
abandonment  to  the  promisor  of  a  security  for  the  payment  of  the  debt,  consisting  of  a  lien 
upon  or  interest  in  property,  to  which  the  promisor  then  had  a  subordinate  title. 

§  83.  The  fourth  class  of  the  third  general  division  con- 
sists of  cases  where  the  promisor  guarantied  the  payment 
by  a  third  person  of  a  debt  transferred  to  the  promisee  by 
the  promisor  ;  and  the  fifth  class,  of  those  where  the  debt 
guarantied  was  thereafter  to  be  contracted  through  the 
agency  of  the  promisor,  acting  as  the  factor  of  the  prom- 
isee, under  a  del  credere  commission.  Both  of  these  kinds 
of  promises,  being  pure  guaranties,  have  been  included  in 
one  rule,  namely : 

RULE   NINTH. 

A  guaranty  is  not  within  the  statute,  if  it  was  made  upon  a  consideration  moving  wholly 
between  the  parties  to  it,  and  related  to  the  payment  of  a  debt  or  the  performance  of  a  duty 
by  the  third  person  to  the  promisee,  the  right  to  enforce  which  then  first  passed,  or  by  the 
terms  of  the  contract  was  thereafter  to  pass  to  him  from  or  through  the  guarantor, 


FIRST  GENERAL  DIVISION. 

CASES  WHICH  ARE  NOT  GOVERNED  BY  THIS  CLAUSE  OP  THE 
STATUTE  OF  FRAUDS,  ALTHOUGH  THEY  FALL  WITHIN  ITS 
TERMS. 


§  84.  It  was  said  by  a  learned  jurist,  in  an  opinion  from 
which  an  extract  was  copied  in  a  previous  section,  that 
neither  the  statute  nor  the  courts  had  made  any  exception 
of  a  promise  which  was  an  undertaking  to  answer  for  the 
debt  or  default  of  another.  («)  This  remark  is  doubtless 
true  of  all  those  cases  governed  by  the  system  of  jurispru- 
dence, which  the  statute  was  designed  to  affect ;  for  even 
where  the  courts  have  excluded  from  its  operation  prom- 
ises clearly  within  its  letter,  this  was  done  by  the  process 
of  construction,  and  in  pursuance  of  the  familiar  maxim 
"cessante  ratione,  cessat  lex."  But  this  part  of  the 
statute  contains  intrinsic  evidence,  that  it  was  designed  to 
effect  a  change  in  the  common  laio  only  ;  and  the  rights 
and  liabilities,  depending  upon  that  other  system  of  juris- 
prudence, known  as  the  law  merchant,  which,  in  a  limited 
sphere,  has  been  permitted  by  the  courts  to  create  a  class 
of  exceptions  to  the  common  law,  naturally  form  also  a 
class  of  exceptions  to  the  statute.  To  these  must  be  added 
those  depending  upon  some  subsequent  statute,  which  in 
terms  or  by  necessary  implication,  furnishes  the  only  rule 
to  determine  their  extent,  and  the  sufficiency  of  the  evi- 
dence required  to  establish  their  existence.  The  legislature 
having  the  same  power  to  repeal  the  statute  of  frauds 
which  it  had  to  enact  it,  may  clearly  provide  for  the  exclus- 
ion of  particular  contracts  from  the  operation  of  its  pro- 
visions. These  two  classes  of  cases,  constituting  the  only 
exceptions  to  the  statute,  will  now  be  briefly  considered. 

{(x)  Per  Comstock,  C.  J.,  in  Mallory  v.  Gillett,  ante  §  64. 


CHAPTER    THIRD. 

CASES   GOVERNED    BY   THE   LAW   MERCHANT,    OR  THE  PRO- 
VISIONS  OF   SOME   OTHER  STATUTE. 


§  85.  The  two  classes  of  cases  belonging  to  this  general 
division  are  governed  by  the  first  of  the  rules,  by  which 
the  application  of  the  statute  is  determined,  as  follows : 

RULE   FIRST. 

Oontracts,  the  construction,  validity,  and  evidence  of  which  depend  upon  so  much  of  the  law 
merchant  as  the  common  law  recognizes,  or  the  provisions  of  some  other  statute,  are  excep- 
tions to  the  operation  of  this  clause  of  the  statute  of  frauds. 

ARTICLE  I. 

Contracts  governed  hy  the  law  merchant. 

§  86.  The  text  books  and  the  decisions  have  very  little  to 
say,  respecting  the  effect  of  the  statute  of  frauds  upon  liabili- 
ties regulated  by  the  law  merchant.  It  seems  to  have  been 
assumed,  rather  than  expressly  held,  that  so  much  of  that 
system  as  the  common  law  recognized,  remained  unaffected 
after  the  passage  of  the  act  of  the  29th  of  Charles  the  Second. 
But  it  is  very  evident  that  many  of  the  liabilities  created 
thereby,  which  the  courts  have  continued  to  enforce,  Avitli- 
out  requiring  evidence  of  the  character  provided  for  in 
that  act,  come  within  its  precise  terms.  Of  this  character 
is  the  liability  of  the  acceptor  by  parol  of  a  bill  of  exchange  ; 
who  clearly  undertakes  by  his  acceptance  to  answer  for 
the  debt  of  the  drawer.  But  it  is  well  settled,  that  in  the 
absence  of  a  statute  specially  requiring  the  acceptance  to  be 
in  -wTiting,  a  verbal  accei3tance  will  bind  ;  the  cases  so  hold- 
ing ignoring  altogether  the  statute  of  frauds,  (a)    Many 

(a)  Lumley  v.  Palmer,  Cases  tempore  Hardwicke,  74,  and  2  Strange,  1000; 
Per  Lord  Kenyon,  C.  J.,  Johnson  v.  CoUings,  1  East,  98;  Per  Gray,  J.,  in 
Exchange  Bank  v.  Rice,  98  Massachusetts,  288;  Ontario  Bank  v.  Worthing- 
ton,  12  Wendell  (New  York),  593;  Julian  v.  Shobrooke,  2  Wilson,  9. 


160  Collateral  Undeetakings.  [Ch.  iii. 

other  still  more  unequivocal  instances,  of  liabilities  created 
by  the  mercantile  law,  which  are  daily  enforced  by  the 
courts,  in  direct  coniiict  with  the  provisions  of  the  statute 
of  frauds,  may  be  suggested ;  for  instance  that  of  an 
accommodation  indorser,  particularly  of  an  unaccepted 
bill  of  exchange. 

§  87.  All  attempts  to  reconcile  the  principles,  upon  which 
many  of  these  mercantile  liabilities  depend,  with  the  statute 
are  merely  specious  ;  and  with  respect  to  some  of  them 
the  effort  has  not  been  made.  Generally  commentators 
and  judges  content  themselves  with  simply  adverting  to 
the  fact,  that  they  are  not  within  the  statute,  without 
assigning  any  reason  for  this  opinion.  Thus  a  standard 
work,  speaking  of  a  bill  of  exchange,  says  :  "This  security 
is  in  some  respects  preferable  to  many  others  of  a  more 
formal  nature  ;  for  each  of  the  parties  to  a  bill,  by  merely 
writing  his  name  upon  it,  as  drawer,  acceptor,  or  indorser, 
thereby  impliedly  guaranties  the  due  payment  of  it  at  ma- 
turity, and  the  consideration,  in  respect  of  which  he  became 
a  party  to  it,  can  rarely  be  inquired  into  ;  whereas,  in  the 
case  of  an  ordinary  guaranty,  the  statute  against  frauds 
requires  the  consideration  to  be  expressed,  and  other  mat- 
ters of  form,  which  frequently  render  an  intended  guaranty 
wholly  inoperative."  (&)  But  the  principle  that  contracts 
of  this  character  are  not  governed  by  the  statute,  is  the 
only  one,  upon  which  their  exclusion  from  its  provisions 
can  firmly  rest,  and  it  is  entirely  satisfactory  in  all 
respects. 

§  88.  It  would  be  useless  to  cite  at  length  cases  illustrating 
the  rule,  as  the  enforcement  of  such  liabilities  is  matter  of 
daily  occurrence.  In  the  authorities  collected  in  the  note, 
the  principle  that  they  constitute  a  class  of  exceptions  to 
the  statute  of  frauds,  is  eitlier  expressly  stated  or  neces- 
sarily to  be  inferred,  (c) 

(b)  Chitty  on  Bills,  page  4. 

(c)  Bayley  on  Bills,  149  (2d  American  edition) ;  Chitty  on  Bills,  4 ;  1  Par- 
sons on  Notes  and  Bills,  282,  note;  2  id.  23;  Casey  v.  Brabason,  10  Abbott's 


Art.  II.]  Collateral  Undertakings.  161 

ARTICLE  11. 

i  Oontraots  governed  by  the  provision  of  some  other  statntei 

§  89.  Upon  a  similar  ground,  a  contract  executed  in 
accordance  with  the  terms  of  another  and  subsequent 
statute,  which  is  clearly  designed  to  furnish  the  only  rule, 
by  which  its  sufficiency  shall  be  tested,  and  its  existence 
established,  will  be  regarded  as  not  being  within  the  pro- 
visions of  the  statute  of  frauds.  Thus  in  Thompson  v. 
Blanchard,  3  New  York  (3  Comstock),  335,  A.  D.  1850,  a 
motion  was  made  to  dismiss  an  appeal,  taken  from  the 
Supreme  Court  to  the  Court  of  Appeals  ;  upon  the  ground 
that  the  undertaking,  given  for  that  purpose,  under  the 
code  of  procedure  of  1848,  was  not  valid  within  the  statute 
of  frauds.  The  instrument  was  executed  by  three  sureties 
and  contained  all  the  matters  required  by  the  code  of  pro- 
cedure to  be  contained  in  such  undertakings  ;  but  it  was 
not  under  seal,  nor  did  it  express  any  consideration,  it 
being  a  simple  undertaking  to  pay  costs,  damages,  etc., 
*'in  the  language  of  the  code.  The  majority  of  the  court 
held  (Bronson,  C.  J.,  dissenting,)  that  the  undertaking 
was  sufficient,  and  the  motion  was  accordingly  denied. 
Gardiner,  J.,  delivering  the  prevailing  opinion,  referred 
to  the  fact  that  it  was  expressly  provided  in  the  code  of 
procedure,  that  when  an  appeal  was  perfected  in  accord- 
ance with  the  section  reciting  the  contents  of  the  undertak- 
ing, the  proceedings  should  be  stayed  ;  and  he  added  that 
the  word  "undertaking,"  used  in  the  statute,  meant,  not 
an  agreement  but  a  promise,  so  that  the  decisions  holding 

Practice  Reports  (N.  Y.),  368;  Pillans  v.  Van  Mierop,  3  Burrow,  1663 ;  Zell- 
weger V.  Caffe,  5  Duer  (N.  Y.),  87;  Spann  v.  Baltzell,  1  Florida,  301; 
Turnbull  v.  Trout,  1  Hall  (New  York),  336 ;  Parks  v.  Brinkerhoff,  2  Hill 
(New  York),  663;  Manrow  v.  Durham,  3  Hill  (New  York),  584;  Barker  v. 
Prentiss,  6  Massachusetts,  430,  433 ;  Storer  v.  Logan,  9  Massachusetts,  55, 
58;  Spaulding  V.  Andrews,  48  Pennsylvania,  411;  O'Donnell  v.  Smith,  2 
E.  D.  Smith  (New  York),  124;  Strohecker  v.  Cohen,  1  Spears  (South  Caro- 
lina), 349;  Wilkinson  v.  Lutwidge,  1  Strange,  648;  Fisher  v.  Beckwith,  19 
Vermont,  31  ;  Leonard  v.  Mason,  1  Wendell  (New  York),  522;  Oakley  v. 
Boorman,  21  Wendell  (New  York),  588. 
21 


162  Collateral  Undertakings.  [Ch.  in. 

that  the  statute  of  frauds  required  the  consideration  to  bo 
expressed  in  writing,  were  not  applicable  because  they 
expressly  proceeded  upon  the  ground  that  the  statute 
used  the  word  "agreement,"  instead  of  "promise"  or 
"undertaking."  He  then  added:  "The  legislature,  in 
the  section  referred  to,  have  said  that  an  undertaking,  to 
the  effect  prescribed,  shall  be  effectual.  We  have  no 
authority  to  add  other  conditions.  If  it  be  said  that  such 
an  instrument  would  not  be  obligatory  by  the  statute  of 
frauds,  the  very  obvious  answer  is,  that  the  legislature  of 
1848  had  the  same  power  to  restore  the  common  law,  as 
to  this  class  of  securities,  that  their  predecessors  had  to 
abolish  it.  2d.  The  undertaking  prescribed  by  the  335th 
section  is  a  statute  security  and  not  a  common  law  agree- 
ment. Agreements  which  derive  their  obligation  from  the 
common  law,  and  no  others,  are  enumerated  in  our 
statute,  and  required  to  be  made  in  writing,  expressing  a 
consideration.  The  objection  I  am  considering,  assumes 
tliat  the  undertaking  in  question  falls  within  one  of  the 
classes  of  agreements  there  specified.  It  has  however 
been  generally  supposed,  that  the  assent  of  more  than 
one  party  was  essential  to  the  validity  of  an  agreement  at 
common  law."  He  concluded  as  follows  :  "The  only  con- 
sideration that  can  be  imagined,  for  the  undertaking  of 
the  defendant  and  his  sureties,  is  the  stay  of  proceedings 
upon,  and  the  right  to  review  the  judgment  obtained  by 
the  plaintiff.  But  this  delay  and  privilege  is  the  act  of 
the  law,  against  the  wishes  and  in  spite  of  the  opposition 
of  the  respondent.  What  possible  application,  therefore, 
has  the  statute,  designed  to  prevent  frauds  and  perjuries 
in  reference  to  common  law  contracts,  to  an  undertaking, 
the  contents  and  legal  effect  of  which  are  written  on  the 
face  of  the  statute  \  What  fraud  is  to  be  suppressed  or 
perjury  avoided,  by  making  this  appellant  certify,  under 
his  signature,  to  a  consideration,  which,  if  it  exist  at  all, 
did  not  arise  from  the  agreement  of  the  parties,  but  from 
a  law  which  this  court,  and  all  others,  are  bound  judici- 
ally to  notice  %  At  most,  it  would  be  but  cumulative  evi- 
dence of  the  provisions  of  a  statute." 


Art.  II.]  Collateral  Undertakings.  163 

§  90.  The  question  came  again  in  another  form  before  the 
same  court  in  DooUttle  v.  Dininny,  31  New  York,  350, 
A.  D.  1865.  This  was  an  appeal  from  a  judgment  of  the 
Supreme  Court,  recovered  in  favor  of  the  plaintiif  in  an 
action  founded  upon  an  undertaking  given  on  an  appeal 
from  a  justice's  judgment,  in  pursuance  of  another  section 
of  the  code  of  procedure,  containing  substantially  the 
same  provision  as  the  section  under  consideration  in  the 
preceding  case.  Among  other  objections  to  the  judgment 
of  the  court  below,  the  appellant  insisted  that  the  under- 
taking was  void  by  the  statute  of  frauds.  The  judgment 
was  unanimously  affirmed  ;  Davies,  J.,  who  delivered  the 
opinion,  referring  to  Thompson  v.  Blancliard  as  decisive 
of  this  point.  He  said:  "It  was  there  held  .... 
that  the  statute  of  frauds  applied  only  to  common 
law  agreements,  where  the  consideration  was  the  subject 
of  mutual  agreement  between  the  parties  ;  and  not  to 
instruments  created  under  and  deriving  their  obligation 
from  special  statutes,  without  the  acceptance  or  assent  of 
the  party,  for  whose  ultimate  benefit  they  were  given." 

§  91.  The  decision  in  Thompson  v.  Blanchard  was  fol- 
lowed in  Johnson  v.  Noonan^  16  Wisconsin,  687,  A.  D. 
1863,  upon  substantially  the  same  facts,  and  under  a  statute 
similar  to  that  of  New  York ;  but  no  reasons  were  specially 
assigned  by  the  court,  except  that  they  preferred  the 
opinion  of  the  majority  in  the  former  case,  to  that  of  the 
chief  justice. 


SECOND  GENERAL  DIVISION. 

CASES  WHICH  ARE  NOT  WITHIN  THIS  CLAUSE  OF  THE  STATUTE, 
BECAUSE  THE  TERMS  OF  THE  STATUTORY  DESCRIPTION  OF 
THE  PROMISES  TO  WHICH  IT  APPLIES,  ARE  ONLY  PARTIALLY 
SATISFIED. 


§  92.  The  system  upon  which  this  part  of  our  work  is 
based,  now  leads  us  to  the  consideration  of  those  cases 
which  are  excluded  from  the  provisions  of  the  statute, 
because  they  fail  to  satisfy  some  term  of  the  phrase,  "any 
special  promise  to  answer  for  the  debt,  default,  or  miscar- 
riages of  another  person."  It  must,  however,  be  said,  at 
the  outset,  that  this  reason  for  holding  that  the  promise  is 
valid,  without  writing,  will  very  rarely  be  found  expressly 
declared  in  the  cases  themselves.  The  want  of  any  recog- 
nized system  of  classification,  to  which  allusion  was  made 
in  the  proper  place,  has  compelled  us  to  frame  one,  based 
upon  our  own  deductions  from  the  grounds  upon  which 
the  decisions  were  placed ;  and  in  doing  so  we  have,  in 
most  instances,  been  compelled  to  infer  from  the  reasons 
assigned,  to  what  general  principle  of  construction, 
whether  relating  to  the  terms  or  the  spirit  of  the  act,  each 
decision  is  to  be  referred.  Sometimes  it  happens  that  the 
opinion  delivered  in  a  particular  case,  belonging  to  a  class 
which  we  have  assigned  to  this  general  division,  purports 
to  place  the  decision  upon  the  general  scope  of  the  act, 
and  the  mischiefs  against  which  it  was  directed,  without 
regard  to  the  fact,  that  in  truth  the  terms  of  the  statute 
were  not  satisfied.  And  the  contrary  state  of  things  also 
occasionally  occurs,  in  cases  which  we  have  placed  in  the 
third  general  division.  Sometimes  also  two  cases,  neces- 
sarily depending  upon  the  same  principle  of  construction, 
will  be  made  by  their  respective  decisions  to  depend,  the 
one  upon  the  letter,  the  other  upon  the  spirit  of  the  act. 


Collateral  Undertakings.  165 

But  these  are  simply  phases  of  the  confusion,  prevailing 
upon  nearly  every  question,  arising  in  connection  with  the 
subject  which  we  have  undertaken  to  discuss  ;  an  under- 
taking which  implies  a  duty,  not  only  to  endeavor  to 
reconcile  all  conflicting  opinions,  but  also,  when  they 
cannot  be  reconciled,  to  select  those  which  are  regarded 
as  indicating  the  better  rule ;  and,  when  necessary,  to 
point  out  and  correct  errors,  (a) 

§  93.  It  only  remains  to  be  said,  by  way  of  completing 
these  prefatory  remarks,  that  the  course  of  the  discussion 
will  sometimes  make  it  necessary  to  consider  in  this  gene- 
ral division,  cases,  and  perhaps  classes  of  cases,  which 
properly  depend  upon  the  spirit,  rather  than  the  terms  of 
the  statute.  For  in  pursuing  the  examination  of  the  prin- 
ciples involved,  throughout  theii'  various  ramifications, 
and  the  corollaries  resulting  from  them,  as  well  as  the 
qualifications,  limitations,  and  exceptions  to  which  they 
may  be  subjected,  the  discussion  will  occasionally  shift 
from  the  letter  to  the  spirit  of  the  act,  and  then  back 
again. 

(a)  Instances  of  the  prevailing  confusion  and  conflict  of  authority,  which 
render  the  task  of  classification  so  arduous,  and  its  result  so  unsatisfactory, 
■will  occasionally  be  given  in  the  text  or  in  the  notes.  As  peculiarly  germane 
to  one  of  the  observations  contained  in  the  foregoing  section,  we  will  here 
refer  to  Pratt  v.  Humphrey,  22  Connecticut,  317,  a  case  which  has  already 
been  cited  upon  one  point  involved,  and  will  be  hereafter  cited  at  length 
upon  the  other.  Upon  the  latter  point  the  decision  was  quite  remarkable; 
as  a  promise  by  executors  to  pay  certain  creditors  of  the  plaintiff,  made  in 
consideration  of  his  forbearance  to  collect  a  debt  due  to  him  from  the  estate, 
was  excluded  from  this  clause  of  the  statute,  because  it  was  made  to  the 
plaintiff,  and  not  to  his  creditors ;  but  the  court  put  the  decision  chiefly  upon 
the  ground,  that  the  object  and  intention  of  the  statute  showed  that  it  vraa 
not  intended  to  embrace  such  promises.  But  in  no  class  of  cases  is  it  so 
clear,  that  the  reason  for  the  prevailing  rule  is,  that  the  words  of  the  act  do 
not  embrace  the  promise,  as  in  those  where  it  was  made  to  the  debtor;  and 
the  conflict  respecting  the  effect  of  that  ruling  in  particular  cases,  grows 
entirely  out  of  the  fact,  that  it  is  contended  that  the  spirit  of  the  act  does 
embrace  them. 


CHAPTER  FOURTH. 

CASES    DEPENDING  UPON    THE   WORDS    "ANY   SPECIAL 
PROMISE  TO   ANSWER." 


§  94.  The  cases  included  within  the  first  three  classes  of 
the  second  general  division,  being  those  where  it  has  been 
held  that  the  statute  does  not  prevent  a  recovery  upon 
oral  evidence,  because  the  circumstances  do  not  satisfy 
some  one  of  the  first  five  words  of  the  phrase  under  exam- 
ination, are  comparatively  few  in  number ;  so  that  they 
may  all  be  conveniently  considered  together  in  one  chap- 
ter, and  governed  by  one  rule,  namely  : 

RULE  SECOND. 

The  statute  does  not  apply  to  implied  promises ;  or  to  liabilities  for  deceitful  representations, 
whereby  the  third  person  gained  credit  i  or  to  promises  to  do  some  act  for  the  security  of  a 
creditor  of  a  third  person,  other  than  the  absolute  or  contingent  assumption  of  the  debt  by 
the  promisor. 

ARTICLE  1. 

Where  the  promise  was  not  "  special," 

§  95.  The  term  "  special  promise,"  has  a  well  recognized 
meaning  in  the  law  :  it  is  synonymous  with  express  prom- 
ise, and  denotes  a  promise  which  has  been,  in  fact  and  in  ex- 
press terms,  made  by  the  promisor,  as  contradistinguished 
from  an  implied  promise.  Implied  promises  arise,  with- 
out the  actual  assent  of  the  promisor,  by  operation  of  law, 
being  ' '  such  as  reason  and  justice  dictate,  and  which, 
therefore,  the  law  presumes  that  every  man  has  contracted 
to  perform,  and  upon  this  presumption  makes  him  answer- 
able to  such  persons  as  sufi'er  by  his  non-performance. "(a) 
The  object  of  inserting  the  qualifying  adjective  in  the 
statute,  seems  to  have  been  to  leave  implied  promises 

(a)  3  Blackstone's  Commentaries,  158. 


Art.  1.]  Collateral  Undertakings.  1G7 

unaffected  by  its  provisions.  (&)  However,  one  learned 
judge  has  adopted  the  scliolastic,  rather  than  the  legal 
definition  of  the  expression,  for  he  says:  "The  word 
'special,'  according  to  Walker,  means  ' denoting  a  sort, 
or  species,  particular,  peculiar,  appropriate,  designed  for  a 
particular  purpose.'  The  statute  was  designed  to  avoid  only 
such  promises  as  are  especially  and  particularly  to  answer 
for  the  debts  of  others,  not  those  which,  while  incidentally 
assuming  the  responsibility  for  such  debts,  are  wholly  or 
principally  for  the  purpose  of  performing  some  distinct 
obligation  of  the  promisor,  "(c)  But,  although  the  con- 
clusion to  which  the  learned  judge  was  led  by  his  definition 
is  unobjectionable,  the  profession  are  generally  agreed 
that  the  expression  "  special  promise  •'  is  used  in  the  stat- 
ute merely  in  contradistinction  to  an  implied  promise  ;  and 
upon  that  understanding  some  distinctions  have  been 
made,  which  in  their  day  were,  and  in  some  cases  may  yet 
be  important,  though,  in  most  of  the  particular  instances 
presently  cited,  the  action  would  be  now  sustained  upon 
other  principles. 

§  96,  The  point  was  thus  adjudged  in  one  of  the  earliest 
reported  American  cases,  Smith  v.  Bradley,  1  Root  (Con- 
necticut), 150,  decided  by  the  Superior  Court  in  the  year 
1790,  as  follows  :  "Action  of  the  case  declaring  —  That  on 
the  29th  of  April,  1781,  the  defendant  received  of  the 
plaintiff  a  pay-table  order  for  200^.  in  state  bills,  which  he 
received  of  Col.  Champion,  and  was  accountable  to  liim 
for ;  that  the  defendant,  in  consideration  thereof,  prom- 
ised to  account  to  Col.   Champion  for  it ;  that  he  hath 

(/))  Furbish  v.  Goodnovv,  98  Massachusetts,  296.  In  Elder  v.  Warfield,  1 
Harris  and  Johnson,  391,  Buchanan,  C.  J.,  said,  that  where  the  question 
arose  in  the  case  of  goods,  etc.,  furnished  to  the  third  person,  the  promise  is 
within  the  statute,  if  the  action  cannot  be  sustained  upon  the  common  counts, 
but  the  plaintiff  must  declare  specially  upon  the  promise;  and  this  appears 
to  have  been  the  view  of  Serjeant  Williams,  according  to  the  original  note 
to  the  case  of  Forth  v.  Stanton,  1  Saunders,  210. 

(c)  Per  Strong,  J.,  in  Durham  v.  Manrow,  2  New  York  (2  Comstock), 
638. 


168  Collateral  Undertakings.  [Cli.  iv. 

never  accounted  to  said  Champion  for  it ;  but  the  plaintiff 
hath  been  compelled  to  pay  said  Champion  for  said  order  ; 
damage  133^.  Issue  to  the  jury  on  the  plea  of  non- 
assumpsit,  and  verdict  for  plaintiif.  Defendant  moves  in 
arrest  the  insufficiency  of  the  declaration,  being  upon  a 
parol  promise  made  in  A.  D.  1781,  more  than  three  years 
before  the  date  of  the  plaintiff' s  writ.  And,  by  the  statute 
against  frauds  and  perjuries  said  action  is  not  maintain- 
able. Judgment — That  the  motion  in  arrest  is  insufficient. 
By  the  Court. — It  is  no  cause  of  arrest  that  the  jury  have 
found  their  verdict  upon  insufficient  evidence,  for  they  are 
judges  of  the  weight  of  evidence.  The  consideration  of 
the  promise  is  laid  to  have  been  in  April,  A.  D.  1781 ;  but 
the  promise  did  not  arise  until  the  plaintiff  was  compelled 
to  pay  Col.  Champion  said  order,  and  it  was  a  promise  or 
obligation  which  the  law  raised  from  the  natural  equity 
of  the  transaction,  and  not  within  said  statute." 

§  97.  So  in  Goodwin  v.  Gilbert^  9  Massachusetts,  510, 
A.  D.  1813,  the  plaintiffs  had  assigned  and  conveyed  to 
the  defendants,  by  deed-poll,  certatQ  indentures  and  inter- 
ests in  real  estate,  by  the  terms  of  which  the  plaintiffs 
were  to  pay  certain  sums  of  money  to  a  third  person,  the 
deed  specifying  that  it  was  subject  to  all  the  conditions, 
etc.,  mentioned  in  the  conveyances  to  the  plaintiffs  ;  and 
the  defendants  had  taken  possession  of  the  premises.  An 
action  of  assumpsit  was  brought  to  charge  the  defendants 
with  the  payment  of  the  moneys  ;  and,  on  a  verdict  taken 
for  the  defendants,  subject  to  the  opinion  of  the  court,  it 
was  insisted  in  their  behalf,  that  the  promise  was  within 
the  statute  of  frauds.  But  the  Court,  after  saying  that 
when  the  grantee  enters  under  a  deed-poll,  certain  duties 
being  reserved  to  be  performed,  although  no  action  lies 
upon  the  deed,  the  grantor  may  maintain  assumpsit  for  the 
non-performance  of  the  duties  reserved,  added:  "It  was 
objected  that  this  was  an  agreement  concerning  an  interest 
in  lands  ;  and  that  no  memorandum  being  signed  by  the 
party,  the  case  was  within  the  statute  of  frauds.  But 
where  the  law  raises  the  promise,  it  is  not  within  the  stat- 


Alt.  I.]  Collateral  Undertakings.  16.^ 

ute.  The  same  answer  may  be  made  to  the  objection  that 
it  was  a  promise  to  pay  the  debt  of  another,  and  not  in 
writing."  So  the  verdict  was  set  aside,  and  a  verdict 
entered  for  the  plaintiffs. 

§  98.  A  similar  decision  was  made  in  PiJce  v.  Broion^  61 
Massachusetts  (7  Gushing),  133,  A.  D.  1851.  There  it  was 
held  that  where  a  deed  describes  the  land  conveyed,  as 
being  subject  to  a  mortgage  previously  executed  by  the 
grantor,  and  expresses  that  the  amount  due  upon  the 
mortgage  is  part  of  the  consideration,  and  that  the  deed  is 
on  condition  that  the  grantee  shall  assume  and  pay  the 
debt  secured  by  the  mortgage ;  an  action  of  assumpsit  can 
be  maintained  by  the  grantor  who  has  been  compelled  to 
pay  the  mortgage  debt ;  the  objection  that  the  promise  of 
the  grantee  was  within  this  clause  of  the  statute,  not 
being  tenable  because  it  was  made  to  the  debtor  himself. 
"Besides,"  the  Court  added,  "promises  implied  bylaw 
are  not  within  the  statute." 

§  99.  And  it  would  seem,  although  the  question  arose 
under  a  kindred  statute,  (c?)  that  the  decision  in  The  Cabot 
Bank  v.  Morton,  70  Massachusetts  (4  Gray),  156,  A.  D. 
1855,  turned  in  part  upon  the  same  point,  the  court  hold- 
ing there  that  the  warranty  of  genuineness  of  the  signature 
of  the  indorser  of  a  promissory  note,  which  arose  in  favor 
of  the  bank,  against  a  person  who  offered  the  note  for  dis- 
count was  an  implied  promise,  and  therefore  not  within  a 
statutory  provision,  requiring  certain  representations  and 
assurances  respecting  third  persons,  to  be  in  writing. 

§  100.  So  in  Allen  v.  Pryor,  3  A.  K.  Marshall  (Kentucky), 
305,  A.  D.  1821,  it  appeared  that  the  plaintiffs  had  sold 
goods  to  the  firm  of  GUI  and  Bainbridge,  and  by  the  terms 
of  sale  the  purchase-price  was  to  be  secured  by  an  indorsed 
note,  which  they  were  to  furnish  ;  and  that  they  had  made 
a  note,  payable  to  the  defendant,  which  he  "assigned"  to 


(d)  The  Massachusetts  statute  referred  to,  post,  §  105,  note. 
23 


170  Collateral  Undertakings.  [Ch.  iv. 

the  plaintiff  in  payment  of  the  purchase-price ;  and  the 
question  was  whether  this  "assignment"  created  a  liabil- 
ity. The  majority  of  the  court,  affirming  a  judgment  for 
the  plaintiff,  held  that  the  law  would  imply  from  .the 
assignment  a  promise  that  the  assignor  would  pay  the 
amount  of  the  note,  if  it  could  not  be  collected  from 
the  makers ;  and  that  inasmuch  as  this  liability  of 
the  defendant  "does  not  arise  from  any  express  prom- 
ise of  his,  but  it  results  from  a  promise  which  the  law 
implies,  from  the  fact  of  his  having  assigned  the  note  on  a 
sufficient  consideration,  the  statute  of  frauds  never  has, 
and  we  suppose  never  ought  to  be  construed  to  apply  to 
such  a  promise."  (e) 

§  101.  And  in  Stoclcing  v.  Sage,  1  Connecticut,  519,  A.  D. 
1816,  the  defendants  were  owners  of  a  vessel,  of  which  the 
plaintiff  was  the  master;  and  while  in  a  foreign  port, 
the  plaintiff  contracted  with  K.  &  Co.  to  go  to  another 
place,  and  there  purchase  and  transport  certain  cattle  for 
them,  upon  which  contract  he  received  an  advance  from 
them ;  and  on  the  return  voyage  he  was  compelled  to  put 
into  another  port,  where  he  sold  the  cattle  to  pay  freight 
and  charges,  and  returned  to  his  home  port.  When  he 
had  arrived  there,  the  plaintiff  claimed  the  right  to  retain 
the  proceeds  of  the  cattle,  until  he  could  settle  with  K.  & 
Co.  ;  but  the  defendants  insisting  that  they  were  entitled 
to  the  money,  he  paid  it  to  them  on  their  verbal  promise 
to  indemnify  him  against  any  liability  to  K.  &  Co., 
including  costs  and  expenses ;  and  they  having  sued 
the  plaintiff  at  the  foreign  port,  he  was  put  to  large 
expenses  in  defending  the  suit,  in  which  he  was  finally 

(e)  In  some  of  the  United  States,  the  mere  assignment  of  an  evidence  of 
debt  is  construed  as  implying  a  guaranty  of  payment  or  collection,  under 
conditions  more  or  less  restricted.  Other  instances  of  this  rule  -will  appear 
hereafter.  In  the  particular  case,  it  would  appear,  from  the  statement  of  facts, 
that  the  defendant  actually  indorsed  his  name  upon  the  note,  but,  a?  it  was 
not  negotiable,  the  court  treated  the  transaction  as  a  mere  assignment. 
Throughout  the  whole  case,  the  words  '-'assignment"  and  "indorsement"  are 
used  as  convertible  terms. 


Art.  II.]  Collateral  Undertakings.  171 

successful ;  and  now  brought  this  action  for  reimburse- 
ment, and  recovered  in  the  court  below.  The  judgment 
was  affirmed  upon  a  writ  of  error,  the  prevailing  opinion 
holding,  with  respect  to  the  question  arising  under  the 
statute  of  frauds,  that  the  law  would  imply  an  agreement 
on  the  part  of  the  principal,  to  reimburse  the  agent,  in  such 
a  case  as  this,  and  that  "such  implied  agreement  is  not 
within  the  statute  of  frauds  and  perjuries."  (/) 

ARTICLE  11. 

Where  a  liability  for  a  third  person's  debt  or  default  arises  out  of  a  deceitfol  representation 
and  not  out  of  a  "  promise." 

§  102.  The  statute,  being  confined  in  terms  to  promises, 
has  no  application  to  an  action  sounding  in  tort,  and 
founded  upon  a  deceit  practised  upon  the  plaintiff,  by  a 
false  and  fraudulent  representation,  made  by  the  defendant, 
concerning  the  character  or  pecuniary  circumstances  of 
another,  whereby  the  plaintiff  was  induced  to  give  him 
credit.  As  the  result  of  a  recovery,  in  such  an  action,  will 
always  practically  charge  the  defendant  with  the  debt  of 
another,  or  with  damages  for  his  default  or  miscarriage,  a 

(/)  Another  instance  of  an  implied  promise,  which  is  not  witliin  tlie 
statute,  is  that  of  an  assignee  for  the  benefit  of  creditors.  Drakeley  v. 
Deforest,  3  Connecticut,  272 ;  Hitchcock  v.  Lukens,  8  Porter  (Ala.), 
333;  Hughes  v.  Stringfellow,  15  Alabama,  324.  Perhaps,  also,  some 
of  the  questions,  'to  be  considered  in  the  next  volume  respecting  the 
effect  of  performance  of  a  special  promise  which  is  within  the  statute, 
may  in  part  depend  upon  the  same  principle.  Thus  in  Gray  v.  Hill, 
Ryan  and  Moody,  420,  A.  D.  1826,  the  plaintiff  declared  specially  upon  an 
agreement  to  assign  to  him  a  lease  of  certain  premises,  in  consideration  of 
his  putting  them  in  repair,  averring  that  he  did  repair  them,  etc.,  and  there 
were  also  counts  for  work  and  labor  and  money  expended.  At  the  trial,  it 
appeared  that  the  promise  was  verbal,  and  it  was  objected  that  the  plaintiff 
could  not  recover  under  the  statute  of  frauds;  but  Best,  C.  J.,  said,  that 
although  the  fourth  section  of  the  statute  was  decisive  against  the 
plaintiff  upon  the  special  count,  he  might  recover  upon  the  others;  that  the 
law  would  "imply  a  promise,  not  touched  by  the  statute,  nor  within 
the  danger  of  perjury  guarded  against  by  it."  In  Kelsey  v.  Hibb.<!,  13  Ohio, 
N.  S.  340,  cited  in  a  subsequent  chapter,  the  court  appear  to  have  overlooked 
the  statutory  requirement  that  the  promise  must  be  special. 


172  Collateral  Ukdektakings.  [Ch.  iv. 

grave  question  arose,  coeval  with  what  is  generally 
regarded  as  the  establishment  of  the  principle,  that  an 
action  could  be  maintained  for  a  false  recommendation, 
whether  the  statute  of  frauds  did  not  require,  if  not  in 
terms,  at  least  by  necessary  implication,  that  the  recom- 
mendation should  be  proved  by  some  writing.  The  first 
adjudged  case  in  which  this  species  of  action  was  sus- 
tained is  Pasley  v.  Freeman,  3  Term  Reports,  51,  decided 
in  1789,  where  each  of  the  judges  delivered  opinions  seri- 
atim and  at  great  length.  There  is  no  allusion  in  the 
prevailing  opinions  to  the  statute  of  frauds  ;  but  Grose,  J., 
founded  one  of  his  arguments  against  sustaining  the  action, 
upon  this  provision  of  the  statute. 

§  103.  But  in  Eyre  v.  JDunsford,  1  East,  318,  A.  D. 
1801,  the  point  that  the  statute  did  not  apply  was  dis- 
tinctly determined.  This  was  an  action  for  falsely  and 
fraudulently  representing  one  Thompson,  to  be  a  per- 
son whom  the  plaintiflfs  might  safely  trust,  in  conse- 
quence of  which  they  sold  him  goods  upon  credit; 
and  the  plaintiffs  having  had  a  verdict,  a  rule  nisi 
was  obtained  for  a  new  trial,  and  was  supported  in  part 
on  the  ground,  that  the  action  was  calculated  to  trench 
upon  the  statute  of  frauds.  But  the  rule  was  discharged ; 
and  Lord  Kenyon,  in  his  opinion,  held  that  the  statute 
has  no  relation  to  such  cases.  "It  raises,"  he  said,  "cer- 
tain legal  presumptions  of  fraud,  from  the  want  of  certain 
formalities  in  contracts  and  other  transactions,  against 
which  it  guards  by  avoiding  them  ;  but  that  has  no  appli- 
cation to  actions  founded  on  actual  fraud  and  deceit,  in 
order  to  recover  damages  by  the  party  grieved." 

§  104.  The  question  came  again  before  Lord  Kenyon  and 
the  other  justices  of  the  King' s  Bench  at  a  subsequent  term 
in  the  same  year,  (1801,)  in  the  case  of  Hay  craft  v.  Creasy, 
2  East,  92.  There  the  defendant  was  clearly  the  dupe  of 
a  female  adventurer  named  Robertson,  who  had  induced 
him  not  only  to  lend  her  his  acceptances  to  the  amount  of 
2,000?.,  but  to  recommend  her  to  the  plaintiff  as  worthy 


Art.  II.]  COLLATEEAL  UNDERTAKINGS.  173 

of  credit ;  and  the  only  ground  upon  which  the  action 
could  be  maintained,  with  any  plausibility,  was,  that  in 
answer  to  inquiries  whether  he  had  any  knowledge  of  her 
affairs,  except  from  hearsay,  he  had  said  that  he  knew  of 
his  own  knowledge  that  she  was  a  lady  of  rank  and  fortune, 
whom  the  plaintiff  might  safely  trust ;  whereas  in  fact  he 
had  known  her  as  a  poor  school  mistress,  and  relied  entirely 
upon  her  own  statements,  respecting  her  sudden  accession 
to  wealth.  The  plaintiff  having  recovered  a  verdict,  a  rule 
nisi  to  set  it  aside  was  argued  on  each  side  by  four  of  the 
most  distinguished  counsel  at  tlie  English  bar,  among 
them.  Sir  Edward  Law,  afterwards  Lord  Ellenborough,  for 
the  defendant;  who  argued  that  if  a  particular  phrase 
would  render  a  man  liable  for  the  debt  of  another,  it  mili- 
tated as  much  against  the  spirit  of  the  statute,  as  if  words 
of  direct  guaranty  were  used ;  and  all  the  mischief  would 
be  let  in  which  the  statute  was  made  to  prevent,  if  a  verbal 
representation  could  be  made  the  foundation  of  such  an 
action,  {a)  But  Lord  Kenyon  repeated  what  he  had  said 
upon  this  point  in  Eyre  v.  Dunsford ;  and  although  he 
was  in  the  minority  in  this  particular  case,  the  other  judges 
holding,  against  his  opinion,  that  the  action  could  not  be 
maintained,  the  decision  was  put  upon  the  ground  that 
there  was  no  mala  fides  in  the  defendant,  his  assertion 
being  evidently  intended  only  as  a  very  strong  expression 
of  his  confidence  in  the  woman  ;  and  it  is  now  well  settled 
that  the  statute  does  not  apply  to  such  cases.  (Z*) 


(a)  According  to  the  report  in  East,  the  counsel  for  the  defendant  insisted 
thai  no  action  of  this  character  should  be  sustained.  But  Lord  Campbell,  in 
the  third  volume  of  his  Lives  of  the  Chief  Justices  (page  87  of  the  American 
edition),  states  the  argument  of  Law  to  have  been,  that  to  make  the  defendant 
liable  without  actual  deceit,  would  be  to  treat  him  as  a  surety  for  Miss 
Robertson,  without  any  written  guaranty.  Lord  Campbell  adds  that  the 
mortification  which  Lord  Kenyon  suffered  at  being  overruled  in  this  case  by 
the  puisnes,  was  supposed  to  have  hastened  his  death. 

(6)  See  the  cases  cited,  post,  §§  106,  107, 110,  111,  and  alsoAdamsv.  Ander- 
son, 4  Harris  and  Johnson  ^Maryland),  558;  Upton  v.  Yail,  6  Johnson 
(New  York),    181;  Ewins  v.  Calhoun,  7  Vermont,  79. 


174  Collateral  Undertakin-gs.  [Ch.  iv. 

§  105.  There  has  been  a  great  diflference  of  opinion  among 
the  English  judges,  upon  the  question  whether  this  ruling 
stands  upon  a  solid  foundation  of  reason  and  expediency ; 
and  some  of  them  have  expressed  a  very  decided  opinion, 
in  favor  of  the  interference  of  the  legislature,  to  require 
that  no  such  representations  shall  be  actionable,  unless 
they  were  made  in  writing ;  (<?)  which  opinion  in  the  course 
of  time  prevailed.  In  the  year  1828  was  enacted  by 
parliament  the  statute,  9  George  IV,  chapter  14,  commonly 
called  Lord  Tenterden's  act,  designed  to  bring  this  class 
of  cases,  as  well  as  others,  to  which  it  was  thought  that 
the  same  rule  might  be  properly  applied,  within  the  prin- 
ciple of  the  statute  of  frauds  ;  by  providing  that  a  memo- 
randum in  writing  should  be  necessary,  in  order  to  main- 
tain an  action  for  deceitful  representations  respecting  the 
ability  or  character  of  a  third  person ;  or  upon  a  promise 
to  pay  a  debt  contracted  during  infancy ;  or  a  debt  barred 
by  the  statute  of  limitations.  And  similar  statutes  have 
been  enacted  in  some  of  the  United  States,  (c?) 

(c)  Per  Lord  Alvanley,  C.  J.,  and  Chambre,  J.,  in  Tapp  v.  Lee,  3  Bosan- 
quet  and  Puller,  367,  post,  §  106.  Per  Lord  Eldon,  Chancellor,  in- Evans  v. 
Bicknell,  G  Vesey,  172,  on  page  186,  and  in  Ex  parte  Carr,  3  Vesey  and 
Beames,  108. 

{d)  Alabama,  Indiana,  Kentucky,  Maine,  Massachusetts,  Michigan,  Mis- 
souri, Oregon,  Vermont,  and  Virginia.  For  these  statutes,  and  section  six 
of  Lord  Tenterden's  act,  see  the  schedule  prefixed  to  this  volume. 
It  is  foreign  to  the  purpose  of  this  work,  to  enter  into  any  detailed 
examination  of  the  provisions  of  these  statutes,  or  of  the  cases  under 
them,  as  they  have  nothing  in  common  with  that  part  of  the  statute 
of  frauds,  which  forms  the  subject  of  our  examination,  except  that  they 
require  a  memorandum  in  writing.  Still  they  are  sometimes  spoken  of 
as  provisions  of  the  statute  of  frauds;  and  they  are  generally  contained  in 
the  same  chapter  as  the  sections  of  the  statute  of  which  this  work  treats. 
The  following  cases  have  been  decided,  upon  those  parts  of  the  statutes  in 
question,  which  refer  to  false  and  fraudulent  representations,  viz. :  In  Eng- 
land, Lyde  v.  Barnard,  Tyrwhitt  and  Granger,  250 ;  Haslock  v.  Ferguson,  7 
Adolphus  and  Ellis,  86;  Svvann  v.  Phillips,  8  Adolphus  and  Ellis,  457; 
Turnley  v.  McGregor,  6  Scott,  N.  R.  906,  1  Bowling  and  Lowndes,  506, 
and  6  Manning  and  Granger,  46;  Wade  v.  Tatton,  18  Common  Bench,  371, 
2  Jurist,  N.  S.,  491,  and  25  Law  Journal,  C.  P.,  240;  Sheen  v.  Bumpstead, 


Art.  II.]  Collateral  Undertakin-gs.  175 

§  106.  But  before  the  passage  of  tlie  act  in  question,  the 
courts  had  been  required  to  exercise  no  little  vigilance,  to 
prevent  the  happening  of  the  result,  which  was  predicted 
by  the  opponents  of  the  rule  established  in  Pauley  v. 
Freeman,  to  wit,  that  it  would  lead  to  an  evasion  of  the 
statute  of  frauds,  by  suing  on  verbal  guaranties,  under 
the  pretence  of  bringing  actions  for  deceit.  Such  an 
action,  or  at  least  one  which  was  very  strongly  open  to  the 
suspicion  of  being  such  an  action,  was  brought  in  the 
Common  Pleas,  almost  in  the  infancy  of  the  doctrine,  and 
was  decided  in  1803.  It  is  reported  under  the  title  of 
Tapp  and  another  v.  Lee,  3  Bosanquet  and  Puller,  367. 
The  declaration  counted  upon  a  fraudulent  representation, 
concerning  tlie  character  and  credit  of  one  Brunei ;  and  it 
appeared  upon  the  trial  that  Brunei,  having  purchased 
goods  from  the  plaintiffs  on  credit,  on  three  previous 
occasions,  to  the  amount  of  28Z.,  applied  for  more 
goods  to  the  amount  of  2Sl.  4:S.  9d.  ;  and  the  plaintiffs, 
being  unwilling  to  trust  him  further,  without  an  ^inquiry 
into  his  character  and  circumstances,  sent  their  servant  to 
make  inquu'ies  from  the  defendant,  who  thereupon  made 
the  representations  complained  of;  and  upon  the  servant's 
report,  the  plaintiffs  gave  Brunei  credit  for  the  goods. 
Soon  afterwards,  the  defendant  inquired  from  the  servant 
if  the  plaintiffs  had  trusted  Brunei ;  and  on  being  answered 
that  he  had  been  trusted,  in  consequence  of  what  the 
defendant  had  said,  replied,  "I  did  not  think  you  was 
such  a  cake."  It  was  further  shown,  that  the  defendant 
himself  had  refused  to  trust  Brunei,  who  was  an  uncertifi- 

8  Jurist,  N.  S.,  702,  10  Weekly  Reporter,  740,  2  Hurlstone  and  Coltman, 
193,  10  Jurist,  N.  S.,  242,  32  Law  Journal,  Exch.,  271,  11  Weekly  Reporter, 
734,  and  8  Law  Times,  N.  S.,  832.  In  the  United  States,  Warren  v.  Barker,  2 
Duvall  (Kentucky),  155;  Jasigi  v.  Brown,  17  Howard  (U.  S.).  183;  Hearn 
V.  Waterhouse,  39  Maine,  96 ;  Gabot  Bank  v.  Morton,  70  Massachusetts  (4 
Gray),  156;  Norton  v.  Huxley,  79  Mass.  (13  Gray),  285;  Kimball  v.  Corn- 
stock,  80  Mass.  (14  Gray),  508;  Wells  v.  Prince,  81  Mass.  (15  Gray),  562; 
Mann  v.  Blancbard,  84  Mass.  (2  Allen),  386 ;  McKinney  v.  Whiting,  90  Mass. 
(8  Allen),  207;  Huntington  v.  Wellington,  12  Michigan,  10;  Crown  v, 
Brown,  30  Vermont,  707. 


176  COLLATEEAL   UfDEETAKINGS.  [Ch.  TV. 

cated  bankrupt,  as  tlie  defendant  knew.  The  jury  found 
a  verdict  for  the  plaintiffs,  and  a  rule  nisi  to  set  it  aside 
having  been  obtained  and  argued,  all  the  judges  delivered 
opinions.  Lord  Alvanley,  C.  J.,  before  whom  the  cause 
had  been  tried,  after  expressing  a  wish  that  the  legislature 
would  provide  that  in  such  cases  the  representations  must 
be  in  writing,  which,  he  said,  it  was  clearly  settled  by  the 
previous  cases,  was  not  necessary ;  remarked,  that  at  the 
trial  he  had  pointed  out  the  circumstances,  from  which  it 
appeared  probable  that  the  inquiry  made  by  the  plaintiffs 
was  intended  as  a  trap  ;  but  the  jury  had  passed  upon  the 
question,  and  it  could  not  be  called  a  verdict  against  evi- 
dence ;  still  he  was  not  satisfied  with  it,  and  thought  that 
the  defendant  ought  to  have  a  new  trial  on  payment  of 
costs.  And  with  him  all  the  judges  agreed,  Rooke,  J., 
and  Chambre,  J.,  saying,  that  there  was  reason  to  believe 
that  the  plaintiffs  intended  to  practice  a  trick  upon  the 
defendant,  and  that  he  ought  to  be  allowed  to  take  the 
opinion  of  another  jury  upon  terms ;  and  the  rule  was 
accordingly  made  absolute  upon  payment  of  costs. 
Undoubtedly  the  cii'cum stance  which  made  the  most 
impression  upon  the  minds  of  the  judges  was,  that  the 
plaintiffs  had  previously  given  Brunei  credit ;  and  in  fact 
it  is  to  be  inferred  from  the  report,  that  the  former  debt 
was  unpaid,at  the  time  when  the  purchase  in  question  was 
made. 

§  107.  The  next  case  was  Hamar  v.  Alexander^  5  Bosan- 
quet  and  Puller,  241,  decided  A.  D.  1806,  also  in  the 
Common  Pleas.  It  presented  the  feature  that  the  fraudu- 
lent representation  was  coupled  with  a  verbal  guaranty 
of  payment  of  the  debt,  which  the  plaintiff  was  permitted 
to  separate  from  the  guaranty  so  as  to  recover  upon  the 
representation  alone.  The  declaration  stated  that  the 
defendant  falsely,  fraudulently,  and  deceitfully  repre- 
sented to  the  plaintiff  "that  one  Leo  was  a  good  man,  and 
might  be  trusted  for  any  amount;"  averring  that  he 
knew  it  to  be  false,  and  that  on  the  faith  of  the  represen- 
tation the  plaintiff  had  sold  Leo  goods.     At  the  trial  the 


Art.  II.]  COLLATEEAL  UNDERTAKINGS.  177 

plaintiff  proved  the  representations  as  laid  in  the  declara- 
tion ;  and  that  the  defendant  added,  "that  if  Leo  did  not 
pay  for  the  goods  he  would."  It  was  also  proved  that  the 
defendant  knew  that  Leo  was  in  bad  circumstances,  and 
that  he  procured  the  credit  for  him,  in  order  that  the  goods 
might  be  consigned  to  a  house  with  which  the  defendant 
was  connected ;  and  one  Crompton  was  also  concerned  in 
the  purchase,  as  a  broker.  On  the  part  of  the  defendant  it 
was  objected,  that  the  representations  having  been  accom- 
panied by  a  promise  to  pay,  which  was  void  under  the 
statute  of  frauds,  the  action  could  not  be  sustained  for 
the  deceit ;  because  the  injury  might  have  arisen  from  the 
void  promise,  and  not  from  the  false  representations.  But 
the  plaintiff  had  a  verdict,  and  the  defendant  obtained  a 
rule  nisi  for  a  nonsuit  on  that  ground.  Sir  James  Mans- 
field, C.  J.,  delivered  the  opinion  of  the  court,  in  which 
he  said,  that,  although  it  was  true  that  it  was  impossible 
to  determine  how  much  mischief  was  done  by  the  repre- 
sentations, and  how  much  by  the  void  promise,  he  was 
nevertheless  of  the  opinion  that,  upon  the  whole,  the  ver- 
dict ought  to  stand.  "Independent  of  the  promise,"  he 
said,  "I  think  this  is  clearly  a  case,  upon  -v^hich  an 
action  might  be  maintained,  if  the  case  of  Pasley  v.  Free- 
iiian  had  never  been  heard  of.  Here  a  gross  cheat  was 
meditated,  and  I  am  by  no  means  certain  that  the  parties 
might  not  have  been  indicted  for  a  conspii*acy."  Tlien, 
after  dwelling  further  upon  the  fraudulent  character  of  the 
conduct  of  aU  the  parties  to  the  cheat,  he  added :  "The 
only  question  then  is,  whether  the  addition  of  this  prom- 
ise, that  if  Leo  did  not  pay,  the  defendant  would,  will 
prevent  the  plaintiff  from  having  a  right  to  support  this 
action.  I  think  that  it  will  not.  There  is  no  proof  that 
the  plaintiff  ever  considered  the  defendant  as  his  debtor, 
or  ever  called  on  him  for  the  money,  or  relied  on  his 
promise  in  the  least  degree.  In  the  next  place,  we  must 
suppose  every  man  to  know  the  law  ;  and  if  the  plaintiff 
was  acquainted  with  the  law,  he  must  have  kno\vn  that 
the  defendant's  promise  was  worth  nothing,  and  could 
have  given  no  credit  to  him  upon  it.  He  cannot  have  con- 
23 


178  Collateral  Undeetakings.  [Ch.  iv 

sidered  it  in  any  other  light  than  as  a  mode  of  expression 
by  which  the  defendant  intended  more  strongly  to  express 
his  opinion  of  Leo's  circumstances.  There  being,  there- 
fore, no  objection  on  the  ground  of  this  promise  being 
added  to  the  other  circumstances,  we  are  of  opinion  that 
the  verdict  .is  right." 

§  108.  It  would  seem  from  the  remarks  of  the  Chief  Jus- 
tice, that  the  test  of  the  right  to  recover  in  such  a  case,  is 
whether  the  plaintiff  relied  upon  the  guaranty,  or  upon 
the  representation  alone.  Much  stress  was  laid  upon  the 
circumstance  that  this  particular  verbal  guaranty  was 
void  as  matter  of  law,  being  conditional  by  its  terms  ;(e) 
but,  upon  the  whole,  it  is  fairly  to  be  inferred  from  the 
opinion,  that  in  all  cases  of  this  character  the  guaranty 
may  be  separated  from  the  representation,  and  the  ques- 
tion left  to  the  consideration  of  the  jury,  whether  the 
plaintiff  relied  upon  the  guaranty,  or  upon  the  representa- 
tion, even  in  a  case  where  the  statute  did  not  render  the 
former  void.  But  in  Oallager  v.  Brunei,  6  Cowen,  346, 
and  in  Shaw  v.  Stine,  8  Bosworth,  157,  (/)  the  New  York 
courts  have  held  that  even  if  the  plaintiff  relied  upon  the 
guaranty,  he  is  entitled  to  maintain  the  action,  if  he  relied 
also  upon  the  false  representations. 

§  109.  The  next  case,  which  arose  in  the  King's  Bench, 
was  Smith  v.  Harris,  2  Starkie,  47,  tried  at  nisi  prius 
in  1817,  before  Lord  Ellenborough.  As  this  case  has  ap- 
parently been  misunderstood  by  some  commentators,  we 
transcribe  the  language  of  the  report,  omitting  only  some 
matter  irrelevant  to  this  inquiry.  "This  was  an  action  on 
the  case  against  the  defendant,  for  a  fraudulent  represen- 
tation that  one  Hollingwood  was  a  trustworthy  man  and 
a  man  of  property,  and  that  his  wife  had  an  annuity  of 
50^. ;  in  consequence  of  which  the  plaintiff  was  induced 
to  give  Hollingwood  credit ;  whereas  he  was  in  insolvent 
circumstances."    Hollingwood  being  called  as  a  witness, 

(e)    See  post,  chapter  vii. 
(/)  Post,  §§  110,  111. 


Art.  n.]  Collateral  Undertakiiigs.  179 

there  was  an  objection  to  Ms  competency,  which  the  Chief 
Justice  overruled,  and  he  then  testified  "that  the  defend- 
ant had  told  the  plaintiff,  that  he  might  lend  him  (Ilolling- 
wood)  201.  or  30Z.,  and  that  he  would  be  perfectly  safe ; 
and  that  he  (the  defendant)  would  see  the  plaintiff  paid. 
Lord  Ellenhorough.  These  cases  come  out  almost  always 
according  to  the  truth.  A  promise  having  been  made  to 
guaranty  the  plaintiff,  which  is  within  the  statute,  there 
being  no  note  in  writing,  he  brings  an  action  for  the  mis- 
representation. This  is  nothing  more  than  a  guaranty 
within  the  statute  of  frauds.  Plaintiff  nonsuited."  There 
is  nothing  in  this  case,  as  reported,  to  indicate  that  Lord 
Ellenborough  intended  in  the  slightest  degree  to  question 
the  rule  as  laid  down  in  the  previous  cases,  particularly 
Hamar  v.  Alexander.  It  would  be  sufficient  to  distin- 
guish the  two  cases,  that  there  appears  to  have  been  no 
proof  of  a  scienter  in  Smith  v.  Harris  ;  but,  apart  from 
that  criticism,  the  language  of  the  defendant,  as  given  by 
the  witness,  indicates  rather  an  expression  of  opinion 
respecting  his  circumstances,  or  his  honesty,  than  the 
affirmation  of  an  existing  fact ;  and  it  is  evident  that  the 
so  called  representation  was  entirely  subordinate  to  the 
guaranty,  instead  of  being  independent  thereof,  so  as  to 
be  capable  of  being  made  the  foundation  of  a  distinct 
remedy. 

§  110.  The  case  of  Oallager  v.  Brunei,  6  Cowen  (New 
York),  346,  decided  A.  D.  1826,  presents  features  in  some 
respects  similar  to  those  of  each  of  the  two  cases  last 
cited,  although  neither  of  them  was  referred  to  in  the 
argument  or  in  the  opinion ;  which  is  the  more  remarkable, 
because  the  second  count  of  the  declaration  appears  to 
have  been  framed,  with  the  hope  of  bringing  the  case 
within  the  opinion  of  Sir  James  Mansfield,  in  Hamar  v. 
Alexander.  There  the  first  count  of  the  declaration 
averred,  in  substance,  that  C.  and  H.  proposed  to  purchase 
from  the  plaintiffs  a  quantity  of  cotton,  at  a  certain  price, 
part  to  be  paid  for  in  cash,  and  part  by  their  notes, 
indorsed  by  the  defendant  at  four  months  ;  that  they  were 


180  COLLATEEAL   UxDEETAKIITGS.  [Ch.  IV. 

then  unable  to  pay  for  tlie  cotton,  and  that  the  plaintiffs 
were  unwilling  to  sell  it  on  their  sole  credit ;  and  that  the 
defendant,  well  knowing  these  facts,  but  contriving,  etc., 
falsely  and  deceitfully  represented  to  the  plaintiffs,  that  he 
was  willing  to  indorse  the  proposed  note ;  and  thereby 
induced  the  plaintiffs  to  sell  and  deliver  them  the  cotton  ; 
whereas,  in  truth,  he  was  not  willing,  and  did  not  mean  or 
intend  to  indorse  the  note,  whereby,  etc.  The  second 
count  was  in  substance  the  same,  except  that  it  averred, 
that  C.  and  H.  were  in  bad  credit,  and  unfit  to  be  trusted ; 
that  the  defendant,  well  knowing  this,  and  fraudulently 
intending  to  enable  C.  and  H.  to  obtain  possession  of  the 
cotton,  and  convert  it  to  their  own  use,  withoiit  paying 
the  plaintiffs  for  it,  falsely,  fraudulently,  and  deceitfully 
represented  to  the  plaintiffs,  that  if  they  would  sell  the 
cotton  to  C.  and  H.,  the  defendant  would  become  answer- 
able to  the  plaintiffs  for  so  much  of  the  price  as  should 
be  unpaid,  by  indorsing  the  notes  of  C.  and  H.,  etc.  The 
defendant  demurred  to  the  declaration,  and  the  court  gave 
judgment  for  the  defendant  upon  the  demurrer.  Wood- 
worth,  J.,  delivering  a  per  curiam  opinion.  He  said  that 
the  declaration  was  bad  in  substance,  for  not  averring  that 
a  note  was  ever  made  by  C.  and  H.,  and  presented  to  the 
defendant  for  indorsement ;  but,  as  the  decision  upon  that 
point  alone  would  only  postpone  the  question,  he  would 
consider  it  upon  its  merits.  Even  supposing,  he  said, 
that  the  contract  was  in  writing,  the  plaintiffs  cannot  say 
that  they  have  the  election  to  turn  the  action  into  one  for 
deceit ;  unless  the  case  is  such,  as  not  only  to  render  the 
party  liable,  upon  the  contract,  but  also  to  sustain  an 
action  for  deceit.  "For  example,"  the  learned  judge 
said,  "suppose  A  represents  B  to  be  solvent,  knowing  it 
to  be  false,  whereby  B  obtains  credit ;  but  notwithstanding 
this  representation,  the  seller  takes  from  A  his  written 
stipulation  to  guaranty  the  payment.  In  this  case  I  per- 
ceive no  objection  to  a  creditor's  election  of  the  remedy." 
But,  he  added,  the  intention  of  the  party  not  to  fulfil 
the  contract,  is  not  one  of  the  fraudulent  acts  which 
render  him  liable  in  an  action  for  deceit ;  in  such  cases  the 


Art.  II.]  Collateral  Undertakings.  181 

general  ground  of  liability  rests  upon  the  affirmation  of  a 
fact  as  true,  which,  at  the  time,  he  knows  to  be  false,  and 
by  means  whereof,  credit  is  obtained.  Here  there  was  no 
necessity  of  relying  upon  the  representation  or  promise 
of  the  defendant.  The  plaintiffs  had  only  to  insist  that 
the  note  should  be  drawn  and  indorsed,  pari  passu  with 
the  delivery  of  the  goods  ;  hence  if  they  suffer,  it  is  owing 
to  their  own  negligence  and  misplaced  confidence.  He 
then  cites  several  of  the  previous  cases,  in  all  of  which  the 
gravamen  of  the  action  was  the  false  affirmation  of  an 
existing  fact ;  not  a  promise  to  do  a  future  act,  at  that 
time  not  intended  to  be  performed,  and  which,  notwith- 
standing the  intent,  might  or  might  not  be  performed.  (^) 

§  111.  The  rule  intimated  in  the  opinion  of  Woodworth, 
J.,  in  the  case  last  cited,  was  fully  recognized  and  adopted 
in  Shaw  v.  Stine,  8  Bosworth,  157,  decided  in  the  New 
York  Superior  Court,  A.  T>.  1861.  There  the  action  was 
to  recover  the  value  of  goods  sold  by  the  plaintiffs  to 
Cohen  &  Mendel,  of  Cincinnati,  upon  fraudulent  repre- 
sentations of  the  defendants  respecting  their  responsibility, 
and  the  proof  showed  that  after  the  representations  were 
made,  one  of  the  plaintiflTs,  who  transacted  the  business 
on  behalf  of  his  firm,  said  that  he  was  not  satisfied  ;  and 
the  defendants  then  offered  and  agreed  to  indorse  Cohen 
&  Mendel' s  note,  on  being  paid  two  and  a-half  per  cent 
therefor.  The  goods  were  then  delivered,  but  the  note 
given  by  Cohen  &  Mendel  therefor  was  not  paid,  nor  was  it 
indorsed  by  the  defendants.  Upon  the  trial,  the  judge 
charged  the  jury  that  if  the  plaintiffs  relied  on  the  indorse- 
ment, and  not  on  the  representations,  they  should  find  for 
the  defendants  ;  but  if  the  goods  were  sold  upon  the  faith  of 
the  representations,  they  should  find  for  the  plaintiffs ; 
and  he  refused  to  charge,  as  requested  by  the  plaintiffs' 
counsel,  that  if  the  representations  in  any  degree  contrib- 

(g)  See  Boyd  v.  Stone,  11  Massachusetts,  342,  A.  D.  1814,  where  there 
■was  a  similar  ruling  in  a  case  arising  under  the  fourth  clause  of  this 
Eection. 


182  Collateral  Undertakings.  [Ch.  iv. 

uted  to  induce  the  plaintiffs  to  sell  the  goods,  the  plaintiffs 
were  entitled  to  recover.  The  defendants  had  a  verdict, 
and  the  judgment  thereon  was  reversed  upon  an  excep- 
tion taken  to  the  refusal  to  charge  ;  the  Court  saying  that 
the  charge  seemed  to  contain  an  intimation  to  the  jury, 
that  the  plaintiffs  could  not  recover,  unless  they  sold  the 
goods  solely  upon  the  faith  of  the  defendants'  representa- 
tions ;  and  to  leave  it  to  the  jury  to  determine,  upon  which 
one  of  the  inducements  the  plaintiffs  parted  with  their 
property.  The  opinion  (per  White,  J.)  states  the  rule  as 
follows  :  "A  true  test  in  such  cases  may  be  found  in  the 
inquiry,  whether  the  plaintiff  would  have  sold  the  goods 
if  the  false  representations  had  not  been  made  ?  If  he 
would,  then  the  false  representations  did  not  contribute  to 
the  sale,  for  he  would  have  made  the  sale  without  them. 
But  if  he  would  not  have  sold  them  without  the  repre- 
sentations, then  they  contributed  to  the  sale ;  and  the 
party  making  them  is  responsible  for  the  damage  which 
the  plaintiff  suffered,  notwithstanding  that  other  equally 
powerful  motives  may  have  influenced  his  mind  at  the 
same  time  in  the  same  direction,  and  without  the  exist 
ence  of  which  he  would  not  have  come  to  the  conclusion 
to  sell.  It  is  plain  that  each  one  of  several  concurring 
considerations  or  motives,  may  be  so  necessary  to  induce 
the  performance  of  an  act,  that,  in  the  absence  of  any  one 
of  them,  the  act  would  not  be  done ;  and  when  they  are  all 
thus  necessary,  and  all  concur,  each  one  of  them  must  be 
deemed  to  have  aided  in  producing  the  act  and  its  conse- 
quences. In  the  case  before  us,  the  two  things,  the  represen- 
tations made  by  the  defendant  respecting  the  responsibility 
of  Cohen  &  Mendel,  and  the  supposed  security  furnished  Dy 
the  indorsement  of  Stine  &  Mendel  (the  defendants),  may 
have  hotli  heen  necessary  to  the  conclusion  to  which  the 
plaintiffs  finally  came,  to  sell  the  goods  to  the  Cincinnati 
firm.  Neither  separately  might  have  been  a  sufiiciently 
powerful  inducement,  while  both  united  would  be. "(A) 

(7?)  See  also  Thompson  v.  Bond,  1  Campbell,  4,  where  it  was  held  that 
a  fraudulent  representation  that  the  party  to  whom  goods  have  been 
delivered  was  authorized  to  pledge  a  third  person's  credit  therefor,  will 
not  prevent  a  recovery  in  assumpsit  against  the  party  himself,  if  the  seller  in 
fact  gave  credit  to  the  person  to  whom  the  delivery  was  made. 


Art.  III.]         Collateral  Undertakings.  183 


ARTICLE   III. 

Where  a  promise  has  been  made  to  do  some  act,  tending  to  the  discharge  of  a  liability  of  a 
third  person  to  the  promisee,  bat  not  directly  "  to  answer  for  "  the  same. 

§  112.  The  expression  "to  answer  for,"  apparently 
implies  that  the  cases  for  which  the  statute  intended  to 
provide,  are  those  where  the  promisor  enters  into  a  direct 
undertaking,  to  assume  a  liability  resting  upon  a  third 
person,  either  absolutely  or  in  case  of  the  latter' s  default. 
Consequently  a  promise  is  not  within  the  language  of  the 
statute,  which  does  not  in  terms  bind  the  promisor  to  dis- 
charge such  a  liability,  although  it  contemplates  the  per- 
formance of  some  act  tending  to  effect  such  a  discharge, 
and  the  damages  for  its  breach  would  be  measured  by  the 
amount  of  the  demand.  Whether  such  promises,  although 
not  strictly  -within  the  letter,  are  not  so  far  within  the 
meaning  of  the  statute,  as  to  be  included  within  its  provis- 
ions, is  a  question  of  considerable  diflBculty,  which  has 
been  much  debated ;  but  the  weight  of  authority  appar- 
ently favors  the  negative  conclusion. 

§  113.  Thus,  in  a  nisi  prius  case  which  has  been  much 
criticised,  Jarmain  v.  Algar,  2  Carrington  and  Payne, 
249,  and  Kyan  and  Moody,  348,  decided  A.  D.  1826,  the 
declaration  stated  that  one  Flack  was  indebted  to  the 
plaintiff ;  and  for  the  purpose  of  recovering  his  debt  by 
action,  the  plaintiff  had  caused  to  be  issued  against  him 
a  latitat,  indorsed  for  bail  for  34Z. ;  whereupon,  in  consid- 
eration that  the  plaintiff  would  forbear  to  arrest  Flack 
upon  that  writ,  the  defendant  undertook  to  execute  a  bail 
bond  for  Flack,  upon  process  to  be  issued  to  Sussex  or 
Middlesex  at  the  suit  of  the  plaintiff,  when  tendered  to 
him,  within  one  week  from  the  time  of  making  the  promise. 
The  declaration  then  averred  the  issuing  of  process  to 
Middlesex  ;  the  tender  of  a  bail  bond  to  the  defendant ;  and 
his  refusal  to  execute  it.  At  the  trial,  the  plaintiff  proved 
a  written  undertaking  of  the  tenor  stated  in  the  declara- 
tion ;  but  it  contained  no  expression  of  the  consideration. 
The  defendant's    counsel    asked  for  a  nonsuit  on  two 


184  Collateral  Undertakings.  [Ch.  iv. 

grounds,  namely,  that  the  writing  was  insufficient  within 
the  statute  of  frauds,  and  that  the  plaintiff  had  failed  to 
prove  a  sufficient  tender  of  a  bail  bond  for  execution  by 
the  defendant.  Abbott,  C.  J.,  said:  "As  at  present 
advised,  I  think  this  undertaking  is  not  within  the  statute 
of  frauds,  and  is  not  a  promise  to  answer,  etc.,  within  the 
meaning  of  its  provisions."  With  respect  to  the  other 
point  he  thought  that  it  had  better  be  reserved  till  after 
the  verdict ;  and  the  jury  having  found  for  the  plaintiff, 
he  held  that  the  plaintiff  had  failed  to  prove  the  tender, 
and  on  that  ground  directed  that  a  nonsuit  should  be 
entered,  with  leave  to  the  plaintiff's  counsel  to  move  to 
enter  a  verdict  for  the  plaintiff;  but  the  report  states  that 
no  motion  was  ever  made,  (a) 

§  114.  The  case  of  BusTiell  v.  Bea-^an,  4  Moore  and  Scott, 
622,  and  1  Bingham' s  ISTew  Cases,  103,  decided  in  the  English 
Common  Pleas  in  1834,  involves  a  similar  principle ;  and 
it  is  of  much  greater  weight  as  authority  than  the  preced- 
ing ;  as  it  was  elaborately  argued,  and  carefully  considered 
by  a  full  court.  The  action  was  brought  to  recover  dam- 
ages, for  the  failure  to  procure  the  signature  of  one 
Macqueen  to  a  written  guaranty  ;  and  also  upon  a  guar- 
anty of  the  same  general  tenor  signed  by  the  defendant 
himself ;  but,  as  the  court  were  with  the  defendant  upon 
the  last  mentioned  cause  of  action,  the  first  only  will  be 
referred  to  here.  At  the  trial  it  appeared  that  the  plaint- 
iffs were  the  owners  of  the  ship  Warrior  ;  and  she,  needing 
some  repairs,  had  gone  into  the  dock  for  the  purpose  of 
having  them  made;  the  plaintiffs  and  one  Sempill  hav- 
ing previously  entered  into  a  charter-party  for  the  hire  of 


(a)  The  case  of  Elkins  v.  Heart,  Fitzgibbon,  202,  A.  D.  1731,  was  similar 
to  this,  being  an  action  upon  a  promise  that  J.  G.  should  not  go  beyond  the 
kingdom  without  paying  a  debt  due  from  hira  to  the  plaintiff,  made  in  con- 
sideration of  forbearance  in  an  action  brought  against  the  said  J.  G.  by  the 
plaintiff.  The  plea  was  that  there  was  no  note  in  writing,  etc.,  to  which  the 
plaintiff  demurred.  The  report  says:  The  court  "  inclined  that  there  was  a 
new  consideration,  and  therefore  it  was  not  for  the  debt  of  J.  G.,  and  so  not 
within  the  statute  j  sed  adjurnatur." 


Art.  III.]         Collateral  Undertakings.  185 

the  ship  to  Sempill,  after  the  repairs  should  be  completed. 
In  fact  the  ship  was  not  ready  for  sea  within  the  time  pro- 
vided for  by  the  charter  party ;  and  for  that  and  other 
reasons  a  dispute  arose  between  the  plaintiffs  and  Sempill, 
in  consequence  of  which  the  plaintiffs  refused  to  allow  the 
ship  to  go  to  sea.  After  considerable  negotiation,  the  dis- 
pute was  finally  settled,  Sempill  securing  the  plaintiffs 
satisfactorily  for  six  months  hire  of  the  ship ;  and  in 
addition  it  was  one  of  the  terms  of  settlement,  that  the 
defendant  should  procure  T.  P.  Macqueen  to  sign  a  cer- 
tain document,  which  was  drawn  up  and  assented  to  by  the 
parties  ;  by  the  terms  of  which,  after  reciting  that  the  char- 
ter party  had  been  entered  into  ;  that  Sempill  had  secured 
the  payment  of  the  freight  for  the  six  months,  and  was 
about  to  leave  England  in  the  ship ;  Macqueen,  in  con- 
sideration thereof,  agreed  to  guaranty  "the  due  and  faith- 
ful payment  of  all  freight,  for  the  use  or  hire  of  the  said 
ship,  which  shall  or  may  become  due  and  payable  from 
the  said  H.  C.  Sempill,  for  any  period  beyond  the  said  six 
months."  The  defendant  at  the  foot  of  a  copy  of  the 
written  guaranty,  prepared  for  Macqueen' s  signature, 
wrote  and  signed  this  undertaking:  " I  undertake  to  get 
a  copy  of  the  above  guaranty  duly  signed  by  Thomas 
Potter  Macqueen,  Esq.,  M.P.,  and  within  a  week  delivered 
to  Mr,  Brittan"  (the  attorney  for  the  plaintiffs).  This 
settlement  was  made  on  the  6th  of  October,  1829  ;  and  in 
consequence  of  it,  the  plaintiffs  suffered  the  Warrior  to 
proceed  to  sea,  and  she  sailed  accordingly  on  the  10th  of 
the  same  month.  The  guaranty  was  not  executed  by 
Macqueen,  although  the  defendant  was  repeatedly  applied 
to  for  that  purpose ;  and  in  this  action  the  plaintiffs 
claimed  damages  to  the  amount  of  upwards  of  1500^., 
being  the  amount  unpaid  by  Sempill  for  the  hire  of  the 
ship  after  the  six  months.  A  verdict  was  found  for  the 
plaintiffs,  upon  a  case  subject  to  the  opinion  of  the  court ; 
and  upon  the  argument  the  defendant' s  counsel  insisted, 
among  other  things,  that  the  memorandum  at  the  foot  of 
the  letter,  did  not  satisfy  the  statute  of  frauds,  as  it  did 
not  contain  any  expression  of  the  consideration ;  and  also 
24 


186  Collateral  Undertakings.  [Ch.  iv. 

ttiat  as  the  proposed  guaranty,  to  be  signed  by  Macqueen, 
contained  no  expression  of  the  consideration,  the  defend- 
ant was  at  most  liable  only  for  nominal  damages,  by  reason 
of  his  failure  to  procure  Macqueen  to  sign  it. 

§  115.  But  on  the  point  that  the  defendant' s  agreement 
was  not  sufficient  within  the  statute,  Tindal,  C.  J., 
delivering  the  opinion  of  the  court,  after  reciting  the 
facts,  said :  ' '  Under  these  circumstances  the  contract 
appears  to  us  not  to  be  a  contract  to  answer  for  the 
debt,  default  or  miscarriage  of  any  other  person ;  but  a 
new  and  immediate  contract  between  the  defendant 
and  the  plaintiffs.  If  Mr.  Macqueen  had  signed  the 
guaranty,  that  guaranty  would  indeed  have  been  within 
the  statute  of  frauds  ;  for  his  is  an  express  guaranty  to  be 
answerable  for  the  freight  due  under  the  charter-party,  if 
SempUl  did  not  pay  it.  But  no  person  could  be  answer- 
able upon  the  promise  to  procure  his  signature,  but  the 
defendant.  Sempill  had  never  engaged  to  get  the  guaranty 
of  Macqueen,  nor  had  Macqueen  engaged  to  give  it. 
There  was  therefore  no  default  of  any  one  for  which  the 
defendant  made  himself  liable ;  he  did  so  simply  upon 
his  own  immediate  contract.  For  as  to  any  default  of 
Sempill  in  paying  the  freight,  the  action  on  the  undertak- 
ing of  the  defendant,  could  not  be  dependent  on  that  event ; 
for  it  would  have  been  maintainable,  if  the  guaranty  were 
not  signed  at  any  time  after  the  day,  on  which  the  defendant 
engaged  it  should  be  given  ;  that  is,  long  before  the  time 
when  the  freight  became  payable."  The  learned  Chief 
Justice  next  considered  the  question  arising  on  the  terms 
of  the  intended  guaranty  of  Macqueen ;  as  to  which  he 
said,  that  there  was  no  consideration  upon  the  face  of  it, 
either  directly  expressed,  or  to  be  supplied  by  fan-  and 
necessary  inference.  The  inducement  related  entirely  to 
past  events  ;  the  entering  into  the  charter-party ;  the  pay- 
ment of  the  six  months  freight  by  Sempill;  and  his  intended 
departure  in  the  ship.  All  this,  he  said,  is  "past  and 
by  gone  consideration."  So  that  if  the  guaranty  had  been 
executed,  an  action  upon  it  would  have  necessarily  failed, 


Art.  HI.  J         Collateral  Undertakhstgs.  187 

and  the  defendant  is  therefore  liable  to  nommal  damages 
only.  The  verdict  was  therefore  ordered  to  stand  for  tlie 
plaintiffs,  but  the  damages  were  reduced  to  one  shilling. (J) 

§  116.  The  decision  in  Towne  v.  Grover^  26  Massachu- 
setts (9  Pickering),  306,  A.  D.  1830,  presents  a  very  good 
illustration  of  the  same  general  principle.  The  declara- 
tion was  to  the  effect  that  the  defendant  had  entered  into 
a  contract  with  one  Newell,  whereby  Newell  was  to  build 
a  house  for  the  defendant,  for  a  specified  sum,  payable 
when  the  house  should  be  completed  ;  that  Newell,  being 
indebted  to  the  plaintiff,  desired  to  procure  from  him 
more  lumber  to  finish  the  house ;  and  on  the  plaintiff 
refusing  to  sell  him  any  more,  the  defendant,  in  consider- 
ation that  he  would  do  so,  promised  the  plaintiff  that  ' '  if 
he  would  sell  and  deliver  to  Newell,  the  lumber  necessary 
to  finish  the  house,  he,  the  defendant,  would  not  settle 
with  Newell  for  the  house,  until  he  had  given  the  plaintiff 
sufficient  notice,  after  the  completion  of  the  house,  so  that 
the  plaintiff  might  secure  himself  by  process  of  attach- 
ment upon  the  defendant,  as  trustee  of  Newell,  for  the  whole 
of  the  debt  which  should  be  then  due  from  Newell  to  the 
plaintiff ; "  that  the  plaintiff  thereupon  gave  Newell  credit ; 
but  the  defendant  had  settled  with  Newell  before  the  com- 
pletion of  the  house,  without  giving  the  plaintiff  notice. 
At  the  trial  the  plaintiff  was  permitted  to  prove  the  prom- 
ise by  oral  testimony,  notwithstanding  the  defendant's 
objection  ;  and  he  had  a  verdict,  which  the  court  refused 
to  set  aside.  The  opinion  of  the  Court  upon  this  branch 
of  the  case  was  as  follows  :  "We  think  the  promise  is  not 
within  the  statute  of  frauds.     It  is  a  separate,  independ- 


(6)  See  Mallett  v.  Bateman,  35  Law  Journal,  N.  S.,  C.  P.,  40,  abstracted 
hereafter.  The  cases  of  Jarraain  v.  Algar,  and  Bushell  v.  Beavan,  are  severely 
criticised  by  Cowen,  J.,  in  his  opinion  in  Carville  v.  Crane,  5  Hill,  483; 
and  he  apparently  finds  it  necessary  to  overrule  them  both,  in  order  to 
sustain  his  decision  in  that  case.  But  there  the  promise  was  to  become 
contingently  liable  for  the  debt  itself,  which  creates  a  very  broad  distinction. 
See  the  case,  cited  at  length,  in  chapter  vii. 


188  Collateral  IlNDEETAKiisrGS.  [Cli.  iv. 

ent  agreement,  having  no  reference  to  tlie  debt  of  Newell, 
except  as  to  the  measure  of  damages.  The  defendant  was 
not  to  pay  the  debt  of  Newell,  but  was  to  give  notice  pre- 
viously to  making  a  settlement  with  him,  which  would 
enable  the  plaintiff  to  obtain  payment  of  his  demand. 
Whether  Newell  paid  the  debt  or  not,  the  promise  of  the 
defendant  would  remain,  to  be  performed,  "(c) 

§  117.  But  a  decided  expression  of  opinion,  against  the 
doctrine  that  a  promise  can  be  taken  out  of  the  statute, 
because  it  had  only  indirectly  the  effect  to  render  the 
promisor  answerable  for  the  debt  of  another,  may  be  found 
in  Scott  V.  Thomas,  1  Scammon  (Illinois),  58,  A.  D.  1832. 
There  the  question  arose  upon  demurrer  to  a  plea  of  the 
statute,  interposed  as  an  answer  to  certain  counts  of  the 
declaration,  founded  upon  a  promise  to  foreclose  a  mort- 
gage, which  the  defendant  held  upon  certain  lands  of  the 
plaintiffs'  debtor ;  to  permit  the  plaintiff  to  buy  in  the 
property  at  a  certain  price,  if  it  would  not  sell  for  more ; 
and,  after  satisfying  his  own  debts,  to  pay  the  surplus, 
if  any,  to  the  defendant.  The  Court,  rendering  judgment 
for  the  defendant  upon  the  demurrer,  said  :  "In  the  argu- 
ment of  this  case,  a  distinction  was  attempted  to  be  drawn 
between  a  promise  to  pay  the  debt  of  another,  and  a 
promise  to  do  some  collateral  act  by  which  such  payment 
might  be  obtained.  No  such  distinction,  however,  is 
recognized  by  any  of  the  cases  relied  on,  nor  does  any 
such  exist.  If  the  act  promised  to  be  done  is,  in  its  con- 
sequences, to  operate  as  a  discharge  of  the  debt  of  another, 
the  circuity  of  the  process  by  which  that  object  is  pro- 
posed to  be  effected,  does  not  vaij  the  principle  of  the 
case."(^ 


(c)  It  may  be  doubted  whether  the  last  sentence,  which  weakens  the 
force  of  what  goes  before,  contains  a  sound  legal  proposition. 

(d)  Sec  also  the  cases  in  chapter  vii,  article  ii,  subdivision  2 ;  and  the  fol- 
lowing cases  upon  another  branch  of  the  statute  :  Rice  v.  Peet,  15  Johnson 
(New  York),  503 ;  Goodrich  v.  Nickols,  2  Root  (Connecticut),  498.  It  must 
be  conceded  that  the  question  is  involved  in  considerable  obscurity. 


Art.  III.]  COLLATEEAL  UNDERTAKINGS.  189 

§  118.  It  was  also  held  by  the  English  Court  of 
Common  Pleas,  in  Anstey  v.  Marclen,  4  Bosanquet 
and  Puller  (1  New  Reports),  124,  A.  D.  1804,  that  where 
the  fulfilment  of  the  promise  will  result,  not  in  the  dis- 
charge of  the  debt,  but  in  its  assignment  to  the  promisor, 
it  could  not  be  said  to  be  a  promise  to  "answer  for"  the 
debt  of  another  within  the  meaning  of  the  statute.  The 
defendant,  in  an  action  of  assumpsit,  to  recover  a  debt 
of  1,OOOZ.,  pleaded  specially  to  all  of  the  cause  of  action 
except  525^.,  in  substance,  that  he,  being  indebted  to 
the  plaintiff  and  others,  was  unable  to  pay  them  in 
full ;  and  they  (the  creditors)  computed  and  agreed 
among  themselves,  that  the  defendant's  estate  would 
pay  not  more  than  ten  shillings  in  the  pound ;  where- 
upon it  was  proposed  and  agreed  between  such  cred- 
itors and  one  Thomas  Weston,  by  the  defendant's  pro- 
curement, "that  the  said  Thomas  Weston  should  and 
would  pay,  out  of  his  own  proper  moneys,  to  the  plaintift 
and  the  said  several  other  creditors  of  the  defendant,  a 
sum  of  money  equivalent  to  105.  in  the  pound  on  the 
amount  of  their  respective  debts,  in  full  satisfaction  and 
discharge  thereof,"  which  they  would  respectively  accept 
in  full  satisfaction  and  discharge  of  the  said  debts  ;  fur- 
ther averring  that  Weston  had,  out  of  his  own  moneys, 
but  for  and  on  account  of  the  defendant,  subsequently 
tendered  to  the  plaintiff  525Z. ,  being  ten  shillings  on  the 
pound  of  his  demand,  and  that  he  had  always  been  ready, 
etc.  There  was  another  special  plea,  in  substance  the 
same,  except  that  the  agreement  was  stated  to  have  been 
made  between  the  plaintiff,  the  defendant,  and  Weston. 

§  119.  The  defendant  paid  into  court  the  525Z.  At  the 
trial,  it  was  shown  that  an  agreement  was  made  between  the 
plaintiff  and  three  other  creditors,  to  accept  from  Weston 
105.  in  the  pound,  "in  satisfaction  of  the  debts  due  to 
them  from  the  defendant,  and  to  assign  those  debts  to  the 
said  T.  Weston ' '  ;  and  tliat  the  others  had  signed  a  writ- 
ten agreement  to  that  effect,  and  had  been  paid  the  amount 
of  the  composition  by  Weston ;  that  the  plaintiff  at  one  time 


190  Collateral  Undertakings.  [Cli.  iv. 

authorized  one  of  the  others  to  sign  for  him,  but  after  the 
others  had  signed,  he  refused  to  sign  it,  and  withdrew  the 
authority.  It  was  contended,  that  the  promise  of  Weston, 
being  within  the  statute  of  frauds,  formed  no  consideration 
for  the  plaintiff' s  promise  ;  but,  under  the  ruling  of  the 
Chief  Justice,  the  defendant  had  a  verdict ;  and,  after 
argument  of  a  rule  nisi,  the  court  refused  a  new  trial.  Sir 
James  Mansfield,  in  the  opinion  delivered  by  him,  said, 
that  when  he  made  his  ruling  at  the  trial,  he  did  not  see 
how  one  person  could  undertake  for  the  debt  of  another, 
when  the  debt  for  which  he  was  supposed  to  undertake 
was  discharged  by  the  very  bargain ;  and  he  does  not 
appear  to  have  retracted  that  opinion.  But  he  put  his 
decision  upon  all  the  circumstances  of  the  case ;  saying 
that  the  object  of  the  transaction  was  to  assign  the  debts 
to  Weston ;  and,  after  dwelling  upon  the  plaintiff's  "ex- 
tremely bad"  conduct,  he  concluded  by  saying  that,  upon 
the  whole,  he  thought  this  was  a  purchase  of  the  plaintiff' s 
demand,  and  for  that  reason  a  new  trial  ought  not  to  be 
granted.  Rooke,  J.,  also  said  that  it  was  a  purchase  of  a 
debt.  Chambre,  J.,  said  that  it  was  a  contract  to  purchase 
the  debts ;  and  that  "it  was  of  the  substance  of  the  agree- 
ment that  the  debts  should  remain  in  full  force  to  be 
assigned  to  Weston ; "  and  he  had  a  right  to  use  the  names 
of  the  creditors  to  collect  the  full  amount,  so  that  "instead 
of  being  a  contract  to  discharge  Marden  from  his  debts,  it 
was  a  contract  to  keep  them  on  foot;"  but,  as  Weston 
wished  to  sustain  the  verdict,  in  the  exercise  of  the  discre- 
tionary power  confided  to  them,  the  court  ought  not  to  set 
it  aside.  He  added,  that  if  the  agreement  was  as  repre- 
sented by  the  pleas,  he  should  have  thought  that  the  case 
was  within  the  statute. 


CHAPTER  FIFTH. 

GENERAL  OBSERVATTONS  UPON  THE  CASES  DEPENDING  UPON 
THE   WORDS    "debt,    DEFAULT,    OR  MISCARRIAGES." 


AKTICLE   I. 

Meaning  and  effect  of  tiese  words,  as  used  in  this  clause  of  the  statute. 

§  130.  We  now  enter  upon  the  examination  of  tlie  cases 
within  the  fourth  class  of  the  second  general  division,  being 
those  "where  there  was  no  original  liability  for  a  'debt, 
default  or  miscarriage,'  to  which  the  undertaking  of  the 
promisor  could  be  collateral. ' '  {a)  They  are  very  numerous 
and  present  many  difficult  questions,  some  of  which  are  yet 
entirely  unsettled,  and  several  chapters  wUl  be  required 
to  complete  the  discussion.  At  the  outset,  we  propose 
briefly  to  inquire  what  is  the  precise  significance  to  be 
attached  to  the  expression  "  debt,  default  or  miscarriages." 

§  121.  In  Castling  v.  Auhert,  2  East,  325,  A.  D.  1802,  a 
case  which  we  shall  have  occasion  to  cite  at  length  in 
a  subsequent  chapter.  Lord  EUenborough  apparently 
regarded  the  words  "default"  and  "miscarriage"  as 
synonymous,  or  nearly  so.  There  the  question  arose  upon 
the  defendant' s  verbal  promise,  made  in  consideration  of 
the  surrender  to  him  of  certain  policies  of  insurance  issued 
in  favor  of  one  Grayson,  to  provide  for  the  payment  of 
certain  bills  drawn  by  Grayson  upon  the  plaintiff*,  and 
accepted  by  the  latter  for  Grayson' s  accommodation,  as 
indemnity  against  which  the  plaintiff"  held  the  policies. 
At  the  time  of  the  agreement  one  of  the  acceptances  had 
matured,  and  an  action  had  been  commenced  thereon  against 
the  plaintiff"  and  Grayson  ;  and  this  action  was  brought  to 

(a)  Ante,  §  70. 


192  COLLATEEAL   UjSTDERTAKUSTGS.  [Ch.   V. 

recover  damages  for  the  failure  to  provide  for  that  accept- 
ance. Lord  Ellenborough,  C.  J.,  said:  "lam  clearly  of 
opinion  that  this  is  neither  an  undertaking  for  the  debt, 
default  or  miscarriage  of  another  within  the  statute. 
It  could  not  be  for  the  debt,  but  rather  for  the  credit  qf 
another  ;  for  when  the  promise  was  made,  no  debt  was 
incurred  from  Grayson  to  the  plaintiff ;  therefore,  if  at  all 
within  the  statute,  it  must  be  for  the  default  or  miscar- 
riage of  another." 

§  122.  The  distinction  suggested  by  his  lordship  between 
a  debt  and  a  default  is  undoubtedly  correct,  as  the  former 
word  indicates  a  liability  arising  out  of  a  contract,  express 
or  implied,  to  pay  money  to  the  promisee,  whether  the 
time  for  payment  had  then  passed  or  was  yet  to  come  ; 
whereas  the  latter  word  is  more  appropriate  to  designate 
a  breach  of  some  duty  to  the  promisee,  other  than  to  pay 
money,  whether  it  arose  from  an  express  contract,  or  from 
some  liability  created  by  law.  Therefore  "default"  forms, 
in  one  aspect,  a  connecting  link  between  "debt"  and 
"miscarriages,"  of  which  one  relates  exclusively  to  con- 
tracts and  the  other  peculiarly  to  torts,  "default"  being 
applicable  with  equal  propriety  to  either  ;  but,  in  another 
aspect,  it  serves  to  remove  a  doubt,  which  might  have 
arisen,  whether  the  statute  was  not  confined  to  past  trans- 
actions ;  inasmuch  as  ' '  debt ' '  and  ' '  miscarriages ' '  are 
peculiarly  applicable,  and  might  have  been  construed  to 
refer  exclusively  to  such  ;(&)  whereas  "default "  can  mean 
nothing  but  the  breach  of  a  duty  or  the  non-payment  of  a 
debt  yet  to  be  discharged.  The  sentence  is  therefore  exceed- 
ingly comprehensive  ;  and  the  three  words,  taken  together, 
seem  to  include  every  act  for  which  the  third  person  might 
be  subjected  to  an  action,  either  at  the  time  of  the  promise 
or  subsequently,  (c) 

(h)  In  fact  there  was  an  effort  made  to  exclude  from  this  clause  of  the 
statute  a  promise  to  answer  for  a  "debt"  thereafter  to  be  contracted,  as  we 
shall  see  in  the  next  chapter. 

(c)  It  will  be  seen  upon  an  examination  of  the  schedule  prefixed  to  thia 
volume,  that  in  several  of  the  acts  in  force  in  the  United  States,  the  legisla- 
tures have  substituted  "  doings  "  or  "  misdoings  "  in  place  of  "  miscarriages." 


Aii;.  1.]  Collateral  Undertakixgs.  193 

§  123.  And  yet  considerable  doubt  was  at  one  time 
expressed,  whether  the  words  of  the  statute  included  a 
promise  to  answer  for  a  tort  committed  by  another.  This 
doubt  appears  to  have  arisen  partly  from  the  decision  in 
Read  v.  Nasli^  1  Wilson,  305,  although  there  is  nothing 
in  that  case  to  justify  it,(<^)  and  partly  from  some  remarks 
of  the  court  in  Buckmyr  v.  Dariiall,  (e)  as  contained  in 
the  reports  in  2  Lord  Raymond,  1085,  and  6  Modern,  248. 
There  it  is  said,  that  one  of  the  difficulties  which  the  judges 
found,  upon  consultation,  in  holding  the  statute  to  be  ap- 
plicable to  the  defendant' s  promise,  (which  was  that  a  third 
person  should  redeliver  to  the  plaintiff,  a  horse  hired  to 
him  by  the  plaintiff,  at  the  defendant' s  request)  grew  out 
of  the  argument  that,  if  the  original  bailee  did  not  rede- 
liver the  horse  to  the  plaintiff  on  demand,  he  would  be 
liable  only  in  trover  or  in  detinue,  founded  upon  a  subse- 
quent tort,  and  not  upon  any  promise.  And  the  decision 
was  finally  placed  upon  the  ground,  that  the  bailee  was 
liable  on  the  bailment,  in  detinue  on  the  original  delivery. 

§  124.  But  whatever  doubts  may  have  arisen  upon  any 
thing  said  in  these  cases,  they  were  set  at  rest  by  the 
decision  in  Kirkham  v.  Ifarter,  2  Barnewall  and  AMer- 
son,  613,  A.  D.  1819,  where  the  language  of  the  statute 
was  subjected  to  a  close  criticism.  There  the  question 
was,  whether  an  action  would  lie  on  the  defendant' s  verbal 
promise,  to  the  effect  that  he  would  pay  the  plaintiff  a 
certain  sum  in  consideration  of  his  not  bringing  an  action 
against  the  defendant's  son  for  wrongfully  riding  his 
horse  to  death.  (/)  Upon  an  application  for  a  rule  to  set 
aside  a  nonsuit,  counsel  contended  that  the  statute  did 
not  apply  to  a  promise  to  be  answerable  for  another's 
tortious  act;  but  Abbott,  C.  J.,  said  that  this  was  a  case 
clearly  within  the  mischief  intended  to  be  remedied  by  the 
statute,  and  he  thought  the  words  of  the  statute  were 


(d)  See  the  case  abstracted  in  §  130. 

(e)  Section  143. 

(/)  The  substance  of  the  declaration  is  given,  post,  §  133. 
25 


194  COLLATEKAL   UNDERTAKINGS.  [Ch.  V. 

sufficiently  large  to  comprehend  it.  After  quoting  the 
words,  he  added :  ' '  Now  the  word  '  miscarriage '  has  not 
the  same  meaning  as  the  word  'debt'  or  'default';  it 
seems  to  me  to  comprehend  that  species  of  wrongful 
act,  for  the  consequences  of  which  the  law  would  make 
the  party  civilly  responsible.  The  wrongful  riding  the 
horse  of  another,  without  his  leave  and  license,  and 
thereby  causing  his  death,  is  clearly  an  act  for  which  the 
party  is  responsible  in  damages,  and,  therefore,  in  my 
judgment,  falls  within  the  meaning  of  the  word  'miscar- 
riage.'" Holroyd,  J.,  said:  "I  think  the  term  'miscar- 
riage' is  more  properly  applicable  to  a  ground  of  action 
founded  upon  a  tort,  than  to  one  founded  upon  a  con- 
tract ;  for  in  the  latter  case  the  ground  of  action  is  that 
the  party  has  not  performed  what  he  agreed  to  perform ; 
not  that  he  has  misconducted  himself  in  some  matter,  for 
which,  by  law,  he  is  liable.  And  I  think  that  both  the 
words  '  miscarriage '  and  '  default '  apply  to  a  promise  to 
answer  for  another,  with  respect  to  the  non-performance 
of  a  duty,  though  not  founded  upon  a  contract."  Best, 
J.,  said  that  the  case  was  within  the  spirit  and  princi- 
ple, as  well  as  the  words,  of  the  act ;  that  there  was  nothing 
to  restrain  these  words,  'default'  or  'miscarriage';  and  it 
appeared  to  him  that  each  of  them  was  large  enough  to 
comprehend  this  case.(p') 

§  125.  Very  similar  to  KirTcliam  v.  Marter,  is  the  recent 
American  case  of  Combs  v.  Harsliaw,  63  North  Carolina, 
198,  A.  D.  1869.     There  it  appeared  that,   in  1864,   the 

(j7)  See  also  Tarner  v.  Hubbell,  2  Day  (Connecticut),  457.  In  Smith  v. 
Fall,  15  B.  Monroe  (Kentucky),  443,  A.  D.  1854,  the  court  held  that  a 
promise  that  a  third  person,  in  whose  hands  the  plaintiff  had  placed  a  note 
for  collection,  should  collect  the  same  and  pay  over  the  amount  to  the 
plaintiff,  was  void,  because  not  in  writing;  but  the  provision  of  the  statute 
cited  and  commented  upon  is  the  one  corresponding  with  the  sixth  section 
of  Lord  Tenterden's  act.  (See  ante,  page  44.)  It  is  singular  that  the  court 
should  have  put  the  decision  upon  the  construction  of  that  provision,  for  its 
application  is  quite  doubtful,  while  the  fourth  section  of  the  statute  of  frauds 
applies  unmistakably. 


Art.  II.]  COLLATEEAL    UNDERTAKINGS.  195 

defendant' s  son,  who  was  under  age,  and  a  soldier  in  the 
confederate  service,  met  the  plaintiff,  and  forcibly  took 
from  him  his  horse.  After  the  war  was  ended,  the  son,  in 
consequence  of  this  and  other  acts,  left  his  father's  house ; 
and  the  defendant,  upon  the  plaintiff  demanding  payment 
for  the  horse,  promised  "that  if  the  former  would  allow 
his  son  to  come  home,"  he  would  refer  the  matter  to  some 
neighbors,  who  should  say  what  ought  to  be  done.  The 
defendant  afterwards  refused  to  refer,  and  thereupon  this 
action  was  brought ;  and  the  plaintiff  had  a  verdict,  the 
judge  holding,  at  the  trial,  that  the  promise  was  not 
within  the  statute,  because  it  was  new,  and  supported  by 
a  sufficient  consideration.  The  verdict  was  set  aside  U]Don 
appeal,  the  Supreme  Court  holding  that  the  promise  was 
within  the  statute,  it  having  been  simply  superadded  to 
the  son' s  liability,  without  any  release  of  the  latter. 


ARTICLE  II. 

The  statute  does  not  apply,  unless  the  promisor  and  the  third  person  hecame  concurrently  liable, 
for  the  same  debt,  default,  or  miscarriage. 

§  126.  The  general  principle  which  governs  all  the  cases 
depending  upon  the  words  "debt,  default,  or  miscar- 
riages," is,  that  in  order  to  set  the  statute  in  motion,  there 
must  have  been,  at  the  time  when  the  promise  took  effect, 
TWO  CONCURRENT  LIABILITIES.  Indeed,  this  principle 
may  be  said  to  lie  at  the  very  foundation  of  every  inquiry, 
whether  a  case  is  or  is  not  within  the  provisions  of  the 
second  clause  of  the  fourth  section  ;  and,  in  that  respect, 
the  distinction  between  the  class  now  under  examination, 
and  the  other,  classes,  is  that  the  latter  are  clearly  within 
the  condition  of  the  principle ;  so  that,  if  the  promise  can 
be  saved  from  the  operation  of  the  statute,  some  rule  must 
be  invoked  for  that  purpose,  which  applies  to  a  case  where 
there  were  two  concurrent  liabilities. 

§  127.  It  is  quite  evident  that  the  principle  requires  that 
the  liability,  to  which  that  of  the  promisor  is  supposed  to 
be  collateral,  should  be  one  which  can  be  enforced  by  pro- 


196  COLLATEKAL   UnDEKTAKINGS.  [Ch.   V, 

ceedings  at  law  or  in  equity;  and  therefore,  unless  it 
appears  that  some  person,  other  than  the  promisor,  has 
incurred  an  actual  liability  with  respect  to  the  subject- 
matter  of  the  promise,  the  agreement  is  not  within  the 
statute,  although  the  third  person  may  be  under  an  imper- 
fect, or  merely  moral  obligation  to  respond.  Thus,  in 
Downey  v.  Hincfiman,  25  Indiana,  453,  decided  A.  D. 
1865,  the  action  was  to  recover  upon  a  mutual  agreement 
between  the  three  plaintiffs,  the  defendant,  and  four  other 
persons,  (eight  in  all,)  whereby  the  parties  agreed  to  con- 
tribute equally  towards  the  expense  of  procuring  eight 
substitutes,  to  take  the  places  of  the  minor  son  of  the 
defendant  and  the  seven  parties  to  the  agreement,  other 
than  the  defendant ;  all  of  whom  had  been  drafted  into  the 
service  of  the  United  States.  The  plaintiffs  were  appointed 
a  committee  to  procure  the  substitutes,  and  this  action  was 
brought  to  recover  one-eighth  of  the  expenses  incurred  by 
them  in  so  doing.  The  grounds  of  the  defence  were,  that 
the  agreement  was  without  consideration,  and  that  it  was 
within  the  statute  of  frauds ;  both  of  which  were  overruled. 
Upon  the  latter  point  the  court  said:  "To  make  the 
promise  collateral,  the  party  for  whom  the  promise  is 
made  must  be  liable  to  the  party  to  whom  it  is  made." 
"In  the  case  in  judgment,  Archibald  Downey,  the  minor 
son  of  the  defendant,  was  in  no  way  liable  to  the  plaintiffs. 
If  the  plaintiffs  had  procured  a  substitute  for  him  without 
his  request,  there  would  have  been  no  liability  thereby 
created  from  him  to  them.  The  substitute  was  procured 
by  the  plaintiffs  upon  the  promise  and  agreement  of  the 
defendant,  and  he  alone  is  liable  therefor." 

§  128.  So  in  Smith  v.  Mayo,  83  Massachusetts  (1  Allen), 
160,  A.  D.  1861,  the  defendant  had  drawn  an  order  on  the 
plaintiffs  for  SlOO  worth  of  lumber,  to  be  delivered  to  one 
Savage,  who  was  building  an  addition  to  the  defendant' s 
house,  under  a  contract  to  furnish  all  the  materials  and 
do  the  work  for  a  specified  sum  ;  by  mistake  the  plaintiffs 
delivered  to  Savage  $160  worth,  and  charged  it  to  the 
defendant.     When   they  discovered  their  mistake  they 


Art.  II.]  Collateral  Undertakings.  197 

presented  tlieir  bill  to  the  defendant,  and  he,  with  full 
knowledge  of  the  facts,  orally  promised  to  pay  it.  It 
appeared,  also,  that  the  plaintiffs  had  stated  that  they 
regarded  Savage  as  their  debtor  for  the  amount ;  and  they 
had  taken  an  order  from  him  on  the  defendant  for  the 
balance  of  $60,  which  they  presented  to  the  defendant  for 
acceptance ;  but  the  latter  had  paid  Savage  in  full.  It 
was  held  that  the  promise  was  made  upon  sufficient  con- 
sideration ;  and,  also,  that  it  was  not  within  the  statute, 
doubtless  upon  the  principle  now  under  examination, 
although  the  court  assigned  no  specific  reasons  for  its 
decision  upon  this  point. 

§  129.  And  the  two  liabilities  cannot  be  called  concur- 
rent^ even  if  the  third  person  was  liable  for  some  debt 
or  duty,  unless  it  was  the  same  debt  or  duty  which  the 
promisor  undertook  to  discharge.  This  proposition, 
which  is,  in  theory,  very  obvious  and  easy  of  application, 
has  nevertheless  sometimes  led  to  considerable  perplexity. 
There  are  a  few  cases,  where  the  promise  grew  out  of  a 
claim  of  precedent  liability  against  the  third  person,  and 
the  practical  effect  of  its  fulfilment  would  be  to  relieve  the 
latter,  wholly  or  in  part,  from  that  claim ;  and  yet,  it  was 
held,  that  the  promise  was  without  the  statute ;  either 
because  the  third  person' s  discharge  was  not  expressly 
stipulated  for ;  or  because  it  did  not  appear,  either  from 
affirmative  proof,  or  from  any  admission  contained  in  or 
implied  by  the  contract  between  the  parties,  that  the  claim 
of  liability  against  him  could  have  been  enforced  by  an 
action.  These  cases  have  led  to  considerable  discussion, 
which  has  not  yet  relieved  some  of  them  from  obscurity  ; 
and  we  will  proceed  to  examine  them  in  this  place ;  for  we 
regard  them  as  properly  depending  upon  the  general 
principle  just  stated,  notwithstanding  the  expression  of  a 
contrary  opinion  from  several  sources  entitled  to  great 
respect. 

§  130.  The  most  important  of  those  cases,  and  one  of  the 
most  celebrated  of  the  early  decisions  under  the  statute,  is 


198  Collateral  Ukdertakings.  [Ch.  v. 

Beady.  JVasTi,  1  Wilson,  305,  decided  in  the  King's  Bench 
in  the  year  1751.  («;)  There  the  plaintiff  sued  as  executor 
of  one  Tuack,  who,  the  report  says,  had  "brought  an 
action  of  assault  and  battery  against  one  Johnson.  The 
cause  being  at  issue,  the  record  entered,  and  just  coming 
on  to  be  tried,  the  defendant  Nash,  being  then  present  in 
court,  in  consideration  that  Tuack  would  not  proceed  to 
trial,  but  would  withdraw  his  record,  undertook  and 
promised  to  pay  Tuack  501.,  and  the  costs  in  that  suit,  to 
be  taxed  till  the  time  of  withdrawing  the  record  ;  in  which 
taxation  all  such  sums  of  money  were  to  be  allowed  as 
Tuack  had  paid,  and  was  liable  to  pay,  to  his  attorney  and 
witnesses  who  attended  the  trial.  Tuack,  relying  upon 
this  promise,  did  withdraw  the  record,  and  no  further 
proceeding  was  had  in  that  cause."  Tuack  being  dead, 
his  executor  brought  this  action  upon  the  special  promise 
by  Nash ;  and  the  defendant  pleaded  non  assumpsit,  and 
specially  "that  there  was  never  any  agreement  in  writing 
touching  this  promise,  or  any  memorandum  thereof' 
To  the  special  plea  the  plaintiff  demurred,  and  the  defend- 
ant joined  in  demurrer.  The  cause  was  twice  argued, 
and  as  the  opinion  of  the  court  is  short,  it  shall  be  given 
in  full.  Lee,  C.  J. :  "The  single  question  is,  whether  this 
promise,  which  is  confessed  by  the  demurrer  not  to  have 

(a)  The  precise  state  of  facts  which  was  presented  to  the  court  in  Read  v. 
Nash  was  suggested,  and  the  rule  with  respect  thereto  stated  obiter,  by 
Lord  Chief  Justice  Holt,  in  Stevens  v.  Squire,  Comberbach,  362,  A.  D.  1696. 
(S.  C,  5  Modern,  205.)  The  case  is  a  direct  authority  only  upon  the  question 
whether,  where  the  promise  admits  that  the  promisor  was  liable  in  another 
action,  independently  of  the  promise,  the  fact  that  another  person  was  also 
alleged  to  be  liable  in  the  same  action,  brings  the  promise  within  the  statute; 
but  the  Chief  Justice  having  stated  that  such  a  promise  was  original,  counsel 
for  the  defendant  asked  him  whether  it  would  not  have  been  within  the  stat- 
ute, if  the  defendant  had  not  been  a  party  to  the  original  action.  Holt 
replied:  "Put  that  case  when  it  comes;  but  if  A  saith  do  not  go  on  against 
B,  eic,  this  being  to  be  performed  within  a  year,  it  will  bind  hira ;  'tis  like  the 
case  of  buyinw  goods  for  another  man,  which  is  every  day's  practice.  But 
if  A  saith,  do  not  go  on  against  B,  and  I'll  give  you  ten  pounds  in  full  satis- 
fadion  of  thr.t  action,  that  might  be  within  the  statute;  but  here  he  appears 
to  be  a  f  ^'  ty  concerned  in  the  former  action." 


Art.  II.]  Collateral  Undertakings.  199 

been  in  writing,  is  within  the  statute  of  frauds  and  per- 
juries ;  that  is  to  say,  whether  it  be  a  promise  for  the 
debt,  default  or  miscarriage  of  another  person  ?  And  we 
are  all  of  opinion  that  it  is  not,  but  that  it  is  an  original 
promise,  sufficient  to  found  an  assumpsit  upon  against 
Nash,  and  is  a  lien  upon  Nash,  and  upon  him  only. 
Johnson  was  not  a  debtor ;  the  cause  was  not  tried ;  he 
did  not  appear  to  be  guilty  of  any  default  or  miscarriage : 
there  might  have  been  a  verdict  for  him  if  the  cause  had 
been  tried,  for  any  thing  we  can  tell ;  he  never  was  liable 
to  the  particular  debt,  damages  or  costs.  The  true  differ- 
ence is  between  an  original  promise  and  a  collateral 
promise ;  the  first  is  out  of  the  statute  ;  the  latter  is  not, 
when  it  is  to  pay  a  debt  of  another  which  was  already 
contracted.     Judgment  for  the  plaintiff." 

§  131.  It  is  very  clear  from  this  opinion,  that  the  cause 
was  decided  upon  the  solitary  ground  that,  with  respect 
to  the  particular  moneys  which  the  defendant  under- 
took to  pay,  the  third  person,  who  was  benefited  by  the 
promise,  did  not  incur  at  the  time  it  was  made,  and  had 
not  previously  incurred,  any  liability  whatever  ;  and  there- 
fore the  only  purpose  to  which  the  case  can  be  legitimately 
put,  is  to  determine  how  close  may  be  the  connection 
between  a  claim  of  precedent  liability  and  a  new  promise, 
without  bringing  the  latter  within  the  statute.  The  prom- 
ise was  in  two  parts,  namely,  to  pay  the  501.  and  to  pay 
the  costs.  The  court  must  have  thought  it  a  valid  promise 
as  to  both  parts,  otherwise  the  demurrer  would  have  been 
sustained. (J)  With  respect  to  the  promise  to  pay  the  50^. 
there  is  but  little  difficulty,  as  the  plaintiff  would  have 
been  under  no  obligation  to  credit  that  sum  upon  his 
claim  for  damages,  or  upon  any  verdict  or  judgment  which 
he  might  have  recovered  against  Johnson ;  hence,  as  to 
that  part  of  it,  the  promise  was  entirely  unconnected  with 
Johnson' s  liability.  But  the  engagement  to  pay  the  costs, 
80  nomine,  was  assuming  a  liability  which  would  have 

(6)  See  Chater  v.  Beckett,  7  Term  Reports,  201,  A.  D.  1797. 


200  COLLATEKAL   UNDERTAKINGS.  [Ch.  V. 

rested  upon  Jolmson,  if  lie  had  been  defeated  in  tlie  action ; 
and  consequently  tlie  payment  of  that  amount  of  money 
would  have  relieved  him  so  much.  It  seems,  therefore, 
incorrect  to  say  that  the  cause  was  decided,  as  has  been  sup- 
posed by  an  eminent  writer,  on  the  ground  that  Johnson's 
liability  would  continue  the  same  after  the  performance 
of  the  promise  as  before.  But  probably  it  was  rightly  held 
that  the  promise  respecting  the  costs  was  not  an  under- 
taking for  the  debt  of  Johnson ;  because,  at  the  time  of  the 
promise,  he  was  liable  for  them  only  in  a  future  contin- 
gency, of  uncertain  occurrence.  The  principle  is  analogous 
to  that  whereby  if  the  third  person  was  not  liable,  when  a 
verbal  promise  was  made,  it  cannot  be  affected  by  a  liabil- 
ity subsequently  accruing,  (c) 


(c)  See  post,  §  152.  There  was,  however,  one  feature  in  the  case  which 
appears  to  have  been  entirely  overlooked  by  the  court  and  counsel :  namely, 
that  although  no  part  of  the  promise  might  have  been  an  engagement  to 
answer  for  the  debt  or  default  oi  Johnson,  that  part  of  it  relating  to  the 
costs  was  a  promise  to  answer  for  the  debt  of  Tuach  to  his  attorney.  In 
these  days  such  an  objection  would  not  be  sustained,  because  the  promise 
was  not  made  to  the  creditor  (chapter  xi);  but,  as  will  be  shown  in  the 
proper  place,  no  such  distinction  was  recognized  till  many  years  after  Read 
V.  Nash  was  decided.  And,  if  that  objection  had  been  taken,  probably  the 
decision  would  have  been  otherwise,  and  much  subsequent  perplexity  would 
have  been  avoided  thereby.  Perhaps  it  would  be  no  exaggeration  to  say, 
that  Read  v.  Nash  was  discussed  in  half  of  the  cases  which  arose  under  the 
second  clause  of  the  fourth  section  of  the  statute  of  frauds,  for  three  quarters 
of  a  century  after  the  decision  was  made.  But  we  call  to  mind  but  six, 
where  any  promise  was  taken  out  of  the  statute  upon  its  authority  :  namely, 
Bray  v.  Freeman,  2  Moore,  114;  Harris  v.  Huntbach,  1  Burrow,  371; 
Edwards  v.  Kelley.  6  Maule  and  Selwyn,  204;  Bird  v.  G-ammon,  3  Bingham's 
New  Cases,  883,  in  each  of  which  it  controlled  the  opinion  of  one  judge; 
Tomlinson  v.  Gill,  Ambler,  330,  where,  if  the  decision  was  correct  on  this 
question,  the  reason  assigned  was  probably  erroneous;  and  Chapin  v.  Merrill, 
4  Wendell,  657,  where  it  was  referred  to  with  Tomlinson  v.  Gill.  All  these 
cases  are  abstracted  elsewhere  in  this  volume,  and  in  each  of  them  the 
application  of  Read  v.  Nash  was  very  remote.  If  we  were  governed 
entirely  by  our  own  views  of  the  practical  importance  of  Read  v.  Nash,  it 
would  not  occupy  as  large  a  portion  of  our  space  as  we  have  felt  bound  to 
assign  to  it;  but,  although  the  fashion,  which  prevailed  so  long  and  so  uni- 
versally, of  citing  it,  for  the  purpose  of  distinguishing  it  from  the  particular 


Art.  II.]  Collateral  Undertakings.  201 

§  132,  The  Court  of  Common  Pleas  took  an  early  occa- 
sion to  limit  the  effect  of  the  ruling  in  Read  v.  Nash,  by 
its  decision  in  Fish  v.  Hutchinson,  2  Wilson,  94,  A,  D. 
1759.  There,  according  to  the  report,  the  plaintiff  declared 
"that,  whereas  one  Yickars  was  indebted  to  him  in  a  cer- 
tain sum  of  money,  and  he  had  commenced  an  action  for 
the  same ;  the  defendant,  in  consideration  that  the  plaintiff 
would  stay  his  action  against  Vickars,  promised  to  pay 
plaintiff  the  money  owing  him  by  Vickars."  Probably 
the  declaration  stated  the  promise  to  have  been  verbal,  for 
otherwise  the  court  must  have  presumed  it  to  have  been 
in  writing.  There  was  a  demurrer  and  joinder  in  demur- 
rer ;  and  the  question  whether  the  statute  applied  was 
alone  argued.     The  plaintiff's  counsel  contended  that, 


case  under  discussion,  is  no-w  growing  obsolete,  it  fills,  nevertheless,  too 
conspicuous  a  position  in  the  text  books  and  the  reports,  to  justify  us  in 
passing  it  over  without  careful  attention  ;  and  besides,  an  explanation  of  the 
case  may  be  necessary  to  avoid  misapprehensions  of  its  effect.  The  authori- 
ties are  quite  at  variance  as  to  the  principles  which  it  establishes.  In  the 
note  to  Forth  v.  Stanton,  in  the  sixth  edition  of  Williams's  Saunders,  vol.  1, 
p.  211,  b,  the  opinion  is  expressed  that  Read  v.  Nash  is  overruled  by  Kirk- 
ham  V.  Marter,  2  Barnewall  and  Alderson,  613,  on  the  ground  that,  in 
Kirkham  v.  Marter,  it  did  not  appear  that  the  son  was  liable  for  the  death 
of  the  horse,  except  by  the  admission  of  the  defendant,  contained  in  his 
request  to  the  plaintiff  to  forbear  to  sue;  while  in  Head  v.  Nash,  the  admis- 
sion that  the  third  person  was  liable,  contained  in  the  request  to  the  plaintiff 
not  to  continue  the  suit,  was  equally  strong.  And  in  Chitty  on  Contracts, 
eighth  edition,  p.  478,  the  same  opinion  is  expressed.  But  in  Kirkham  v. 
Marter,  the  declaration  alleged  that  the  third  person  had,  in  fact,  committed 
the  tort;  and  the  agreement  upon  which  the  action  was  brought  wa^,  that 
the  plaintiff  should  accept  the  amount  undertaken  for  in  satisfaction  of  his 
claim;  the  distinction  between  the  two  cases  being  precisely  the  one  sug- 
gested by  Holt,  C.  J.,  in  Stevens  v.  Squire.  And  it  is  very  clear  that,  in 
Kirkham  v.  Marter,  the  court  did  not  suppose  that  they  were  overruling 
Read  v.  Nash.  The  latter  case  was  followed  in  those  already  mentioned, 
and  it  continues  to  be  cited  as  authority  to  the  present  day.  Professor 
Parsons,  in  his  Treatise  on  Contracts,  vol.  3,  fifth  edition,  p.  23,  and  note, 
says,  that  the  true  rule  established  by  that  case  and  Stevens  v.  Squire  is, 
that,  if  the  liability  of  the  third  person  will  continue,  notwithstanding  the 
performance  of  the  promise,  the  agreement  is  not  within  the  statute,  a  con- 
clusion which  is  commented  upon  in  the  text.  Mr.  Roberts,  in  his  Treatise 
26 


202  Collateral  Undeetakifgs.  [Ch.  v. 

under  the  decision  of  Read  v.  NasJi,  the  promise  was  not 
within  the  statute.  "But  per  totam  curiam  :  This  case  at 
bar  is  very  clearly  within  the  statute,  for  here  is  a  debt  of 
another  person  still  subsisting,  and  a  promise  to  pay  it : 
and  it  is  not  like  the  case  of  Read  v.  HasJi,  for  that  was," 
etc.,  (giving  a  statement  of  the  facts).  "  So  in  that  case 
there  was  no  debt  of  another,  it  being  an  action  of  bat- 
tery ;  and  it  could  not  be  known,  before  trial,  whether  the 
plaintiff  would  recover  any  damages  or  not ;  but,  in  the 
present  case,  here  is  a  debt  of  another  still  subsisting  and 
a  promise  to  pay  it.     Judgment  for  the  defendant." 

§  133.  And  in  Kirliliam  v.  Matter^  2   Barnewall  and 
Alderson,  613,  A.  D.  1819,  which  was  cited  a  few  pages 


on  the  Statute  of  Frauds,  p.  233,  classes  it  with  Tomlinson  v.  Gill,  Ambler, 
330,  and  some  other  cases,  as  establishing  the  rule,  that,  if  the  consideration 
of  the  promise  takes  its  root  in  a  trans;' ction  distinct  from  the  original  lia- 
bility, the  case  is  not  within  the  statute,  a  doctrine  which,  in  the  broad 
terms  stated  by  him,  was  long  ago  exploded.  (See  post,  chapters  xvi  and  xvii.) 
In  Browne  on  the  Statute  of  Frauds,  §  157,  it  is  said,  that  the  case  proves  that 
the  statute  does  not  apply  where  it  does  not  appear  m  point  of  fact  that 
any  debt  or  liabihty  has  been  incurred  ;  which  is  substantially  the  same  view 
taken  of  it  in  the  text.  Mr.  Fell,  in  his  Treatise  on  Guaranty  and  Surety- 
ship, p..  10,  also  cites  the  case  as  showing  that  the  debt  of  the  third  person 
must  be  subsisting,  and  not  a  mere  demand  for  which  the  party  may  cr  may 
not  be  liable.  Among  the  numerous  reported  comments  of  judges  and 
counsel  upon  the  case,  we  find  distinguished  counsel  saying,  in  the  course 
of  the  argument  of  Turner  v.  Hubbell,  2  Day  (Connecticut),  457,  "In 
England,  a  withdrawment  of  the  record  is  a  bar  to  another  action.  It  might 
hence  seem  as  if  the  50Z.  was  paid  as  damages."  If  such  was,  in  truth,  the 
effect  of  withdrawing  the  record,  the  promise  would  be  now  sustained  on 
the  ground  that  the  defendant  in  the  original  action  was  discharged  in 
consideration  of  its  being  made  (chapter  ix) ;  a  prmciple  which  was  not 
generally  recognized  even  as  late  as  1807,  when  that  case  was  argued. 
But  we  have  searched  the  English  books  of  practice  in  vain  for  any  such 
rule.  Under  the  old  common  law  practice  in  New  York,  a  withdrawal  of 
the  nisi  prius  record  had  no  other  effect  than  to  put  the  cause  over  the  term. 
Such,  we  doubt  not,  was  also  the  rule  in  England.  Still,  it  is  to  be  noted 
that  Sir  Fletcher  Norton,  commenting  upon  the  case,  in  the  course  of  his 
argument  in  Williams  v.  Leper,  3  Burrow,  1886,  speaks  of  it  as  if  Johnson 
had  been  discharged. 


Art.  II.]  Collateral  Undertakings.  203 

back,  the  ruling  of  the  last  case  was  applied  to  a  promise, 
founded  upon  forbearance  to  prosecute  an  action,  to 
recover  damages  for  a  tort.  There  the  declaration  stated 
that  the  son  of  the  defendant  had,  without  the  plaintiff's 
leave,  wrongfully  ridden  the  plaintiff's  horse,  in  conse- 
quence whereof  the  horse  died ;  that  the  plaintiff  had 
threatened  to  commence  an  action  against  the  son  therefor, 
and,  in  consideration  that  he  would  not  do  so,  "and  that 
the  plaintiff  would  be  content  to  take,  for  and  on  account  of 
the  said  horse,"  certain  sums,  to  be  ascertained  as  therein 
particularly  mentioned,  the  defendant  agreed  to  pay  those 
sums ;  and  they  having  been  so  ascertained,  this  action 
was  brought  upon  that  promise  to  recover  the  amount 
thereof.  At  the  trial,  the  plaintiff  proved  a  verbal  promise 
as  laid  in  his  declaration,  and  was  nonsuited.  Upon  a 
motion  for  a  rule  for  a  new  trial,  it  was  argued  that 
the  statute  did  not  apply  to  cases  of  tort ;  and  that  as  the 
son  owed  no  debt  to  the  plaintiff,  a  verbal  promise  was 
good,  under  the  decision  in  Read  v.  Nash  ;  but  after  over- 
ruling the  first  proposition,  Abbott,  C.  J.,  said:  "The  case 
of  Read  v.  Nash  is  very  distinguishable  from  this ;  the 
promise  there  was  to  pay  a  sum  of  money  as  an  induce- 
ment to  withdraw  a  record,  in  an  action  of  assault  brought 
against  a  third  person.  It  did  not  appear  that  the 
defendant  in  that  action,  had  ever  committed  the  assault, 
or  that  he  had  ever  been  liable  in  damages ;  and  the 
case  was  expressly  decided  on  the  ground  that  it  was  an 
original  and  not  a  collateral  promise.  Here  the  son  had 
rendered  himself  liable  by  his  wrongful  act,  and  the 
promise  was  expressly  made  in  consideration  of  the 
plaintiff's  forbearing  to  sue  the  son.  I  think  therefore 
the  nonsuit  is  right." 

§  134.  The  two  latter  cases  confine  the  ruling  in  Read  v. 
Nash  within  narrow  and  tolerably  well  defined  limits. 
They  hold,  that  whenever  the  promisor  undertakes  to 
respond  for  any  debt  or  damages,  for  which  it  is  conceded 
that  the  third  person  is  also  liable,  the  promise  is  within 
the  statute ;  though  it  may  be  for  the  payment  of  a  definite 


204  Collateral  XlKDERTAKmes.  [Ch.  v. 

sum,  while  the  debt  or  damages  for  which  the  third  person 
is  liable  are  indefinite  in  amount,  or  even  grow  out  of  a 
wrong  committed  by  him.  The  only  promises  to  which, 
under  those  limitations,  the  decision  in  Read  v.  Nasli  will 
apply,  are  those  where  it  clearly  appears,  in  the  language 
of  the  case  itself,  that  the  third  person  "never  was  liable 
to  i\iQ  particular  debt,"  although  the  promise  related  to, 
and  is  closely  connected  with,  some  debt  or  demand  which 
the  promisee  is,  or  claims  to  be  entitled  to  enforce  against 
him. 

§  135.  The  case  of  Read  v.  Nash  is  said  to  have  been 
followed  in  Bray  v.  Freeman,  2  Moore,  114,  decided  in 
the  Common  Pleas,  A.  D.  1818.  There  the  plaintiff,  in  his 
first  count,  declared  upon  a  promise  by  the  defendant  to 
accept  a  bill  of  exchange  particularly  described,  to  be 
drawn  by  the  plaintiff  upon  him,  for  a  debt  due  to  the 
plaintiff  by  his  father,  for  which  he  "intended  and  was 
about  to  sue"  the  father;  and,  in  consideration  that  he 
would  forbear  to  do  so,  the  defendant  made  the  promise 
in  question ;  concluding  with  averments  of  forbearance  by 
the  plaintiff  against  the  father ;  of  a  special  request  to,  and 
refusal  by  the  defendant,  to  accept  such  a  bill  of  exchange 
as  the  promise  contemplated ;  and  that  the  debt  from  the 
father  was  still  due  and  unpaid.  In  his  second  count, 
the  plaintiff  averred  the  acceptance  of  a  bill  of  exchange 
by  the  defendant  for  the  debt.  To  these  were  added  the 
money  counts.  At  the  trial  the  plaintiff  proved  a  letter 
from  the  defendant  to  him  in  the  following  words  :  "Mr. 
Bray  —  If  you  will  draw  a  bill  at  six  weeks'  date  for  my 
father' s  balance,  dating  it  to-day,  due  26th  next  month,  I 
will  accept  it.  S.  W.  Freeman;"  and  that  a  bill  was 
accordingly  tendered  for  acceptance,  and  acceptance 
refused.  The  defendant  moved  for  a  nonsuit,  on  the 
ground  that,  as  no  consideration  was  mentioned  in  the 
letter,  the  case  came  within  the  statute  of  frauds  ;  and  also 
because  there  was  a  trifling  variance  between  the  declara- 
tion and  the  proof,  touching  the  amount  of  the  debt  due 
from  the  father.    But  the  plaintiff  had  a  verdict,  and  the 


Art.  II.]  Collateral  Undertakings.  205 

defendant  moved  for  a  rule  to  show  cause  wh}^  it  should 
not  be  set  aside,  on  both  objections.  "But,"  the  report 
says,  "the  court  referred  to  the  case  of  Ready.  Nash, 
where  it  was  decided  that  a  parol  promise  to  pay  a  certain 
sum  to  the  plaintiff,  in  consideration  of  his  forbearing  to 
sue  a  third  person  in  an  action  of  assault,  was  not  within 
the  statute ;  because  there  was  no  debt,  default  or  miscar- 
riage of  another  for  which  to  be  answerable  ;  and  therefore 
granted  the  rule  on  the  ground  of  variance  alone  ; ' '  which 
question  was  subsequently  argued  at  length,  and  the  case 
decided  without  any  further  allusion  to  the  statute  of 
frauds;  the  result  being  that  the  rule  was  discharged. (rZ) 

§  136.  But  a  recent  American  case,  JepJierson  v.  Hunt, 
84  Massachusetts  (2  Allen),  417,  A.  D.  1861,  well  illustrates 
the  kind  of  promises  which  are  saved  from  the  operation 
of  the  statute  by  the  principle  of  Read  v.  Nash,  although 
that  case  was  not  cited  in  the  opinion.  This  was  an  action 
to  recover  interest  on  the  agreed  value  of  damages  to  the 
plaintiff's  lands,  which  had  been  taken  by  a  railroad  com- 
pany for  the  purpose  of  its  road.  It  appeared  that  the 
plaintiff  and  the  company  had  agreed  in  writing  upon  the 
valuation  of  the  land  at  one  hundred  and  fifty  dollars ; 
and,  as  a  part  of  the  arrangement,  the  defendant  orally 
agreed  with  the  plaintijQT  to  pay  him  interest  on  tha.t 
amount,  until  the  circumstances  of  the  company  should 
enable  it  to  pay  the  money.  But  the  agreement  with  the 
company,  so  fixing  the  amount  to  be  awarded  to  the 
plaintiff,  was  dependent  upon  the  approval  of  the  county 

{d)  The  case  is  also  reported  in  8  Taunton,  197,  but  that  report  contains 
no  allusion  to  the  question  arising  upon  the  statute.  The  report  in  2  Moore, 
as  far  as  that  point  is  concerned,  is  incomprehensible,  and  must  be  inaccurate. 
The  declaration  alleged,  and  the  proof  showed,  that  there  was  a  debt  due 
from  the  father  to  the  plaintiff;  and  that  fact  is  assumed  and  commented  upon 
in  discussing  the  question  of  variance,  the  decision  being  put  upon  the 
ground  that  the  plaintiff  intended  to  set  forth  the  debt  due  from  the  father,  and 
the  amount  was  only  stated  under  a  videlicit.  On  the  motion  for  the  rule 
nisi,  counsel  cited  the  case  of  Fish  v.  Hutchinson  (ante,  §  132),  which  is 
exactly  in  point  to  show  that  the  promise  was  within  the  statute. 


206  Collateral  Undeetakings.  [Cli.  v. 

commissioners,  by  an  award  to  be  made,  in  a  proceeding 
■vvliicli  had  been  instituted  to  appraise  the  damages  to  the 
land  owners,  pursuant  to  the  statute  ;  and  that  award  had 
not  been  procured  at  the  time  the  suit  was  commenced ; 
in  fact  it  would  seem  that  no  action  had  been  taken  in  the 
proceeding  for  the  appraisal  of  damages,  since  the  agree- 
ment was  entered  into.  It  was  objected  that  the  defend- 
ant' s  agreement  was  within  the  statute ;  but  the  court  held 
otherwise,  for  the  reason  that  until  the  award  was  made, 
the  company  was  under  no  liability  to  pay  interest,  either 
as  a  matter  of  contract,  or  as  damages  resulting  from  the 
withholding  a  sum  of  money  justly  due  to  the  plaintiff,  (e) 

§  137.  The  recent  case  of  Prentice  v.  WilMnson,  5 
Abbott's  Practice  Reports,  N".  S.,  49,  decided  in  the  New 
York  Common  Pleas,  A.  D.  1868,  also  appears  to  corre- 
spond very  closely  with  Bead  v.  Wash,  and  to  depend  upon 
the  same  principle ;  although  neither  of  the  members  of  the 
court  placed  his  decision  upon  that  ground.  The  action 
was  to  recover  for  the  services  of  the  plaintiff,  as  the 
attorney  for  one  Mrs.  Wilkinson,  in  an  action  for  a  divorce 
against  her  husband,  the  defendant' s  brother ;  and  it 
appeared  at  the  trial  that  an  application  for  alimony  had 
been  made  in  that  action  ;  that,  while  it  was  pending,  there 
was  a  meeting  between  Mrs.  Wilkinson,  her  husband,  and 
the  plaintiff  and  the  defendant  in  this  action  ;  that  the 
divorce  suit  was  then  settled  ;  and  in  consideration  of  the 
settlement,  and  as  a  part  of  the  terms  thereof,  the  defend- 
ant agreed  to  pay  the  plaintiff  seventy  five  dollars  for  his 
services  in  that  action.  The  plaintiff  had  a  judgment, 
which  was  afiirmed  on  appeal  by  a  majority  vote.  Various 
reasons  were  assigned  by  the  judges  for  their  respective 

(e)  The  decision  was  also  partly  put  upon  the  ground  that  the  main  object 
of  the  promisor  was  to  secure  a  benefit  to  himself;  a  doctrine  which  is  dis- 
cussed in  chapter  xvii.  But  the  foregoing  is  the  ground  upon  which  the 
court  seem  principally  to  have  relied,  and  it  is  more  satisfactory  than  the 
other,  which,  even  if  it  is  tenable,  implies  that  the  company  was  liable  to  pay 
the  interest;   as  very  clearly  it  was  not. 


A  it.  II.]  COLLATEEAL  UnDEETAKINGS.  207 

opinions,  none  of  wliicli  are  entirely  satisfactory.  But  it 
seems  very  evident  that  the  promise  was  not  within  the 
statute,  because  there  was  no  ascertained  debt  for  which 
any  person  except  the  defendant  was  liable  to  the  plaintiff; 
Mrs.  Wilkinson  being  protected  from  liability  by  her 
coverture,  and  her  husband  not  being  liable  for  this  debt, 
precisely  as  Johnson  was  not  liable  for  the  particular  debt 
assumed  by  the  defendant  in  Read  v.  JSfash.^f) 


(/)  Daly,  First  Judge,  thought  that  the  promise  was  not  within  the  statute 
because  "it  was  a  direct  promise  to  pay  to  the  phiintiff  a  certain  sum  of 
money  for  an  object  to  be  effected,  and  which  constituted  the  consideration 
of  the  promise;  namely,  the  settlement  and  discontinuance  of  the  suit." 
And  he  said  that  it  was  immaterial  whether  the  promise  was  made  to  Mrs. 
Wilkinson  or  the  plaintiff;  for  if  it  was  made  to  her,  the  plaintiff  could 
recover  upon  it,  within  the  principles  discussed  in  chapter  xii  of  this  volume. 
Brady,  J.,  said,  that  although  the  defendant  in  the  divorce  suit  was  not 
indebted  to  the  plaintiff  in  this  suit,  "the  latter  had  an  inchoate  claim,  rest- 
ing upon  the  a^nost  universal  practice  of  allowing  the  wife,  when  plaintiff 
in  a  divorce  suit,  a  sufficient  sum  to  employ  counsel  to  conduct  her  case;  and 
the  plaintiff,  by  consenting  to  discontinue,  yielded  his  right  to  apply  for  it 
against  the  defendant  in  that  suit."  The  learned  judge  thought  that  these 
circumstances  brought  the  case  within  the  principle,  that  when  the  original 
debt  was  extinguished  the  promise  is  not  within  the  statute.  Barrett,  J., 
dissented,  holding  that  the  promise  was  within  the  statute,  because  the  con- 
sideration did  not  move  to  the  defendant.  He  said  that  the  new  undertak- 
ing was  not  accepted  as  a  substitute  for  an  original  demand;  for  if  the 
plaintiff  had  any  remedy  against  the  wife  for  his  fees,  it  was  still  in  full 
force;  while  the  right  to  apply  for  a  counsel  fee  in  the  divorce  suit,  was  not 
an  original  and  vested  debt  or  demand,  the  extinction  of  which  would  take 
the  case  out  of  the  statute.  He  added  that  it  did  not  distinctly  appear  from 
the  evidence  that  the  action  had  been  discontinued,  or  that  the  right  to  apply 
for  a  counsel  fee  had  been  lost;  and  he  compared  the  case  to  Tomlinson  v. 
Gell,  6  Adolphus  and  Ellis,  564  (cited  in  chapter  xvi).  For  these  reasons  he 
thought  that  the  statute  prevented  a  recovery.  But  in  Tomlinson  v.  Gell, 
the  plaintiffs  client  was  clearly  liable  for  the  costs.  Undoubtedly  the 
extinguishment  of  a  contingent  claim  for  alimony  or  counsel  fees,  in  a  divorce 
suit,  would  not  take  out  of  the  statute  a  promise  which  otherwise  would  be 
within  it;  even  if  it  was  a  claim  which  the  attorney  could  assert  against  the 
opposite  party.  But  the  very  fact  that  it  is  not  a  legal  demand,  shows,  that 
in  this  case  there  was  no  original  liability,  to  which  the  defendant's  promise 
could  be  collateral. 


208  COLLATEEAL  UNDERTAKINGS.  [Ch.  V. 

§  138.  With  these  preliminary  explanations,  we  proceed 
to  the  examination  of  the  two  subdivisions,  into  which,  as 
was  stated  in  indicating  the  classification  adopted  in  treat- 
ing tJiis  subject,  the  cases  depending  upon  the  failure  of 
the  two  liabilities  to  concur,  have  been  divided,  (g)  These 
SuVQ,  first:  Cases  where  the  third  person  had  incurred  no 
corresponding  liability  at  the  time  when  the  promise  took 
eftect ;  and,  secondly :  Cases  where  a  previous  correspond- 
ing liability,  incurred  by  him,  had  been  discharged  before 
the  promise  took  effect. 

(gr)  See  ante,  §  70. 


CHAPTER   SIXTH. 

OASES  WHICH  ARE  NOT  WITHIN  THE  STATUTE,  BECAUSE 
THE  THIRD  PERSON  HAD  INCURRED  NO  LIABILITY  COR- 
RESPONDING WITH  THAT  OF  THE  PROMISOR,  AT  THE 
TIME   WHEN   THE  PROMISE  TOOK   EFFECT. 

§  139.  The  cases  within  this  subdivision  of  the  fourth 
class,  are  those  which  most  affect  the  daily  business  inter- 
course of  mankind,  especially  among  persons  but  little 
versed  in  the  technicalities  of  the  law.  They  have  almost 
invariably  this  feature  in  common :  that  one  person  has 
parted  with  his  money,  his  property,  or  his  labor,  to 
another,  in  whose  responsibility  he  had  little  or  no  confi- 
dence, for  which  reason  he  exacted  and  received  an  under- 
taking from  a  person,  other  than  the  one  so  benefited,  that 
he  should  receive  the  consideration  agreed  upon.  Conse- 
quently they  are  very  numerous,  and  present  a  great 
diversity  of  detail  in  the  facts  upon  which  they  depend ; 
whence  have  sprung  many  rules  and  distinctions,  subor- 
dinate to  or  qualifying  the  general  principle  which  governs 
them  all,  and  giving  rise  to  several  questions  of  doubt  and 
difficulty.  The  rule,  by  which  to  determine  the  applica- 
tion of  the  statute  to  this  class  of  cases,  is  contained  in 
the  following  proposition,  being  the  third  of  the  nine 
general  rules  of  our  series : 

RULE  THIRD. 

Where  tiere  was  no  antecedent  liability  of  the  third  person,  and  the  promise  was  fonnded  upon 
a  consideration  moving  to  him,  it  is  without  the  statute  if  the  third  person  did  not  become 
liable  to  the  promisee,  together  with  the  promisor )  and  vice  versa,  if  he  did  so  become  liable, 
it  is  within  the  statute. 

§  140.  This  rule  may  be  said  to  admit  of  no  exceptions, 
unless  one  arises  where  the  promisor  and  the  third  person 
assumed  a  joint  liability.  Of  late  a  strenuous  effort  has 
been  made  to  introduce  that  exception,  which  has  appar- 
ently been  partially  successful ;  and  we  shall  have  occasion 
to  examine  the  question  carefully,  both  upon  authority 
27 


210  COLLATEEAL  UnDEETAKINGS.  [Cll.  VI. 

and  upon  principle,  in  a  subsequent  chapter,  (a)  But 
although  this  rule  has  received  the  sanction  of  a  very  large 
number  of  authorities,  extending  through  a  long  series  of 
years,  it  is  of  a  highly  technical  character  ;  especially  in 
the  corollary  deduced  from  it,  that  if  the  consideration  is 
a  sale  of  property  or  the  like,  made  at  the  request  of  the 
third  person,  and  for  his  immediate  and  direct  benefit,  the 
promisor  is  not  liable,  if  any  credit  whatever  was  given  to 
the  third  person.  For  upon  principle  it  would  seem,  that 
if  each  of  two  persons,  concerned  in  the  purchase  of  prop- 
erty, undertakes  to  respond  to  the  seller  for  the  price, 
directly,  absolutely  and  unqualifiedly ;  or,  in  other  words, 
if  each  agrees  that  Tie  will  pay  the  price,  without  reference 
to  the  question  whether  the  other  fulfils  his  promise  or  not, 
the  undertaking  of  each  is  for  himself,  and  not  for  the 
other;  so  that  whether  the  promises  be  called  joint  or 
several,  each  of  them  is  original,  and  only  to  answer  for 
the  debt  of  the  person  who  makes  it.  And  accordingly, 
much  dissatisfaction  has  been  from  time  to  time  expressed, 
with  the  principle  of  the  rule,  although  the  dissentients 
have  invariably  ended  by  conceding  that  the  question  is 
no  longer  open.(&)  And  the  modern  attempt  to  introduce 
an  exception  in  the  case  of  a  joint  undertaking,  finds  its 
justification  in  this  incongruity. 

§  141.  We  have  not  observed,  either  in  the  cases  or  in  the 
text-books,  any  defence  of  this  rule  upon  principle.  It 
had  its  origin  at  an  early  Deriod,  and  it  is  to  be  found  laid 
down  in  the  cases  without  argument,  so  that  we  are  left  to 
conjecture  the  course  of  reasoning  by  which  it  commended 
itself  to  its  originators.  But  doubtless  the  theory  of  its 
framers  was,  that  although  both  of  the  promisors  may 
have  agreed  to  pay,  it  is  evident  that  none  of  the  parties 
contemplated  that  both  of  the  promises  should  be  fulfilled ;, 

(a)  Chapter  viii,  article  i. 

(6)1  Smith's  Leading  Cases,  sixth  American  edition,  pp.  470.  471.  Per 
Story,  J  ,  in  D'Wolf  v.  Rabaud,  1  Peters,  476.  post,  §  165.  Several  American 
judges  have  referred  to  Judge  Story's  criticism  of  the  rule  with  approba- 
tion, but  no  one  has  attempted  to  found  a  decision  upon  it. 


Art.  I.]  Collateral  Undertakings.  211 

on  the  contrary,  fulfilment  of  one  would,  as  matter  of  law, 
discharge  the  other ;  and  hence  it  is  clear  that  the 
promisor,  who  was  not  benefited  by  the  transaction,  in  fact 
undertook  as  the  surety  of  the  other,  however  absolute  in 
form  his  undertaking  might  have  been.  No  doubt  due 
weight  was  given  to  the  consideration,  that  if  the  courts 
should  recognize  the  validity  of  both  the  undertakings, 
the  spirit  of  the  statute  would  be  sacrificed  to  a  matter 
of  form,  and  its  evasion  in  this  class  of  cases  would 
become  very  easy. 

ARTICLE  I. 

Origin  of  the  rnle  |  English  cases  firom  which  it  is  derived. 

§  142.  The  principle  embodied  in  the  foregoing  rule  will 
be  found  correctly  stated  as  early  as  1697,  in  the  nisi  prius 
case  of  Watkins  v.  Perkins,  1  Lord  Raymond,  224.  The 
following  is  a  copy  of  the  report  of  the  case.  Per  Holt, 
Chief  Justice :  "  If  A  promise  B,  being  a  surgeon,  that  if 
B  cure  D  of  a  wound,  he  will  see  him  paid,  this  is  only  a 
promise  to  pay  if  D  does  not,  and  therefore  it  ought  to  be 
in  writing  by  the  statute  of  frauds.  But,  if  A  promise 
in  such  case  that  he  will  be  B'  s  paymaster,  whatever  he 
shall  deserve,  it  is  immediately  the  debt  of  A,  and  he  is 
liable  without  writing."  {a) 

§  143.  And  in  Buckmyr  v.  Darnall,  decided  in  1704,  the 
question  was  examined  and  discussed  with  such  fullness 
that  the  case  divides  with  Matson  v.  Wharam  (to  be  pres- 
ently cited),  the  distinction  of  being  the  leading  case  upon 
this  branch  of  the  sta.tute.  It  is  reported  in  2  Lord  Ray- 
mond, 1085,  and  again,  under  the  title  of  Burkmire  v. 
Darnell,   in  6  Modern,   248.      Many  of   the    questions 

(a)  It  will  be  noticed,  in  several  of  the  oases  subsequently  cited,  that 
opinions  have  fluctuated  as  to  the  legal  effect  of  a  promise  to  the  other  party 
to  "  see  him  paid  "  for  goods,  etc.,  supplied  to  a  third  person.  But  it  seems 
to  be  settled  now,  in  accordance  with  Holt's  doctrine,  that  the  expression 
imports  a  collateral  promise ;  but  it  is  open  to  explanation,  and  a  jury 
may  find  that  the  words  were  spoken  and  received  as  an  original  undertak- 
ing.    See  chapter  vii,  article  i,  subdivision  (2). 


212  COLLATEEAL  UNDERTAKINGS.  [Cll.  VI. 

involved  in  the  decision  grew  out  of  the  principles  appli- 
cable to  the  now  obsolete  action  of  detinue,  and  at  this  late 
day  it  is  hardly  worth  while  to  take  up  the  space,  which  a 
full  statement  of  the  case  would  occupy.  It  is  also  to  be 
found  reported,  this  time  under  the  title  of  BirJcmyr  v. 
Darnell,  in  1  Salkeld,  27,  in  such  a  compact  form  that  the 
report  may  be  copied  here,  as  follows :  ' '  Declaration. 
That  in  consideration  the  plaintiff  would  deliver  his  geld- 
ing to  A,  the  defendant  promised  that  A  should  redeliver 
him  safe  ;  and  evidence  was  that  the  defendant  undertook 
that  A  should  redeliver  him  safe,  and  this  was  held  a  col- 
lateral undertaking  for  another.  For  where  the  under- 
taker comes  in  aid  only,  to  procure  a  credit  to  the  party, 
in  that  case  there  is  a  remedy  against  both,  and  both  are 
answerable  according  to  their  distinct  engagements ;  but 
where  the  whole  credit  is  given  to  the  undertaker,  so  that 
the  other  party  is  but  as  his  servant,  and  there  is  no 
remedy  against  him,  this  is  not  a  collateral  undertaking. 
But  it  is  otherwise  in  the  principal  case  ;  for  the  plaintiff 
may  maintain  detinue  upon  the  bailment,  against  the  origi- 
nal hirer,  as  well  as  an  assumpsit  upon  the  promise,  against 
this  defendant.  This  was  upon  a  case  stated  at  the  trial 
for  the  opinion  of  the  court ;  judgment  was  given  for  the 
defendant.  Et  per  cur.  If  two  come  to  a  shop  and  one 
buys,  and  the  other,  to  gain  him  credit,  promises  the  seller 
if  Tie  does  not  pay  you  I  will ;  this  is  a  collateral  under- 
taking, and  void  without  writing  by  the  statute  of  frauds 
but  if  he  says  let  him  Jiave  the  goods,  I  will  he  your  pay- 
master, or  /  will  see  you  paid,  this  is  an  undertaking  as 
for  himself,  and  he  shall  be  intended  to  be  the  very  buyer, 
and  the  other  to  act  but  as  his  servant.  "(&) 

§  144.  This  case  was  succeeded  by  Mead  v.  Nashy 
decided  in  1751,  and  Fish  v.  Hutchinson,  decided  in  1759, 
cited  and  commented  upon  in  the  foregoing  chapter  ;  the 
first  of  which,  for  reasons  there  stated,  we  regard  as  a 

(h)  The  case  is  also  reported,  to  the  same  eflfect,  under  the  title  of  Burk- 
mire  v.  Darnel,  in  Holt's  Eeports,  606 ;  and  as  Bourkmire  v.  Darnell,  in  3 
Salkeld,  15. 


Art.  I.]  Collateral  Undertakings.  213 

mere  illustration  of  the  same  general  principle.  Next  fol- 
lowed, in  the  year  1778,  a  nisi  prius  case,  not  regularly 
reported,  but  cited  in  Cowper,  227,  and  2  Term  Reports,  80, 
under  the  title  of  Mawbrey  v.  CunninghaTn.  There,  goods 
were  delivered  to  a  third  person  by  the  plaintiff,  at  the 
request  of  the  defendant,  who  said  "he  would  see  them 
paid  for, ' '  and  Lord  Mansfield  held,  that,  as  the  promise  was 
before  the  delivery  of  the  goods,  it  was  not  within  the  stat- 
ute, "because,  at  the  time  of  the  promise,  there  was  no  debt 
at  all."  And  in  Jones  v.  Cooper,  Cowper,  227,  decided 
the  following  year,  the  goods  had  been  delivered  and 
charged  to  one  Smith,  upon  the  order  of  the  defendant, 
and  a  verbal  promise  in  these  words,  "I  will  pay  you,  if 
Smith  will  not."  The  defendant  having  had  a  verdict. 
Lord  Mansfield,  on  a  motion  for  a  new  trial,  although  he 
agreed  that  this  promise  was  within  the  statute,  adhered 
nevertheless,  to  his  ruling  in  Mawhrey  v.  Cunningham, 
that  an  unconditional  promise,  made  before  delivery,  was 
good  without  writing.  He  said  :  "The  general  distinction 
is  a  clear  one,  and  upon  that  distinction  the  case  which 
has  been  cited  was  determined.  Where  the  undertaking 
is  before  delivery,  and  there  is  a  direction  to  deliver  the 
goods  and  I  will  see  them  paid  for,  it  is  not  within  the 
statute  of  frauds.  But  there  may  be  a  nicety  where 
the  undertaking  is  before  delivery,  and  yet  conditional  as 
this  is.  It  turns  singly  upon  the  undertaking  being  in 
case  the  other  did  not  pay.  We  will  look  into  it."  The 
next  day  Lord  Mansfield  delivered  the  unanimous  opinion 
of  the  court,  as  follows:  "We  are  all  of  opinion,  upon 
the  authority  of  the  cases  in  the  books,  that  the  promise 
by  the  defendant  in  this  case  to  pay  if  Smith  did  not,  is  a 
collateral  undertaking  within  the  statute  of  frauds ;  and  it 
is  so  clear  that  it  would  only  be  misspending  time  to  go 
through  the  cases,  or  to  say  much  about  it.  Rule  for  a 
new  trial  discharged." 

§  145.  But  in  deciding  the  case  of  Peckham  v.  Farm, 
3  Douglas,  13,  A.  D.  1781,  Lord  Mansfield  himself  aban- 
doned the  distinction  which  he  had  endeavored  to  3stab- 


214  Collateral  Undertakings.  [Ch.  vi. 

lisli  in  Mawhrey  v.  Cunningliam.  There  an  action  was 
brought  upon  a  promise,  made  before  delivery  of  the 
goods  to  a  third  person,  and  conditional  in  form  (being 
"I  will  pay  you,  if  he  does  not "),  for  which  reason  it  was 
held  to  be  within  the  statute,  although  it  was  conceded 
that  little  or  no  credit  was  given  to  the  third  person  ;  but, 
in  delivering  the  opinion,  the  Chief  Justice  said :  "Before 
the  case  of  Jones  v.  Cooper,  I  thought  there  was  a  solid 
distinction  between  an  undertaking  after  credit  given,  and 
an  original  undertaking  to  pay  ;  and  that  in  the  latter  case 
the  surety,  being  the  object  of  the  confidence,  was  not 
within  the  statute :  but  in  Jones  v.  Cooper,  the  court  was 
of  opinion  that  whenever  a  man  is  to  be  called  upon  only 
in  the  second  instance,  he  is  within  the  statute  ;  otherwise, 
when  he  is  to  be  called  upon  in  the  first  instance."  In 
this  recession  from  his  original  opinion,  he  doubtless  refers 
to  what  took  place  in  the  judges'  consulting  room,  for  on 
the  day  of  the  argument,  Lord  Mansfield,  as  we  have 
seen,  still  adhered  to  the  doctrine  of  Mawirey  v.  Cun- 
ningJiam.  (c) 

§  146.  And  in  1787  was  decided  the  celebrated  leading 
case  of  Matson  v.  WJiaram,  2  Term  Reports,  80,  where 
the  modern  rule,  which  Lord  Mansfield  failed  completely  to 
recognize  in  Peckham  v.  Faria,  was  distinctly  laid  down ; 
and  the  doctrine  of  Maiohrey  v.  Cunningham  received  its 
finishing  stroke.  Since  then,  all  traces  of  it  have  dis- 
appeared in  the  opinions  of  the  English  judges,  although 

(c)  In  a  note  to  Peckham  v.  Faria,  there  is  a  short  report  of  Parsons  v. 
"Walter,  decided  in  178L  There,  the  plaintiff  had  agreed  with  one  Hol- 
broke,  a  butcher,  for  six  oxen ;  five  were  delivered,  and  the  sixth  was  refused 
unless  the  money  for  it  was  paid,  on  which  the  defendant  said  that  he  would 
pay  the  plaintiff  for  it  next  week  at  Bristol  fair.  On  this  promise  the 
plaintiff  delivered  the  sixth  ox,  which  Holbroke,  in  company  with  the 
defendant,  drove  away.  Buller,  J.,  held  the  case  within  the  statute  of  frauds, 
upon  the  authority  of  Jones  v.  Cooper.  But  probably  the  rule  would  now 
be  the  other  way  in  such  a  case,  if  the  jury  should  find  that  the  plaintiff 
intended  to  abandon  his  contract  with  Holbroke,  and  rely  exclusively  upon 
the  defendant.     See  post,  chapters  ix  and  x. 


Art.  I.]  Collateral  Undertakings.  215 

it  continued  for  some  time  to  be  occasionally  cited  by 
counsel.  There  the  defendant  had  applied  to  one  of  the 
plaintiffs,  to  know  if  they  were  willing  to  serve  one  R.  C. 
with  groceries ;  and  on  his  replying  that  they  did  not 
know  R.  C,  the  defendant  said  :  "If  you  do  not  know 
him,  you  know  me,  and  I  will  see  you  paid."  The 
plaintiff  thereupon  said  he  would  serve  him,  and  the 
defendant  said  :  "He  is  a  good  chap  ;  but  I  will  see  you 
paid.''  The  goods  were  subsequently  sent  to  R.  C,  upon 
his  order  by  letter,  and  charged  to  him  by  the  plaintiffs  ; 
who,  after  applying  to  him  for  payment,  by  letter,  without 
receiving  an  answer,  applied  to  the  defendant,  who  refused 
to  pay  ;  whereupon  this  action  was  brought  for  goods  sold 
and  delivered  to  the  defendant ;  and  a  verdict  was  found 
for  the  plaintiffs,  subject  to  the  opinion  of  the  court. 
Upon  the  argument  the  plaintiffs'  counsel  relied  upon  the 
distinction  in  Mawbrey  v.  Cunningham.,  but  the  court 
were  clearly  of  opinion  that  that  distinction  had  been 
overruled ;  and  Mr.  Justice  Buller,  who  was  counsel  for 
the  plaintiff  in  Jones  v.  Cooper,  stated  that  in  Mawhrey 
V.  Cunningfiam,  Lord  Mansfield  had  said:  "This  is  a 
promise,  made  before  the  debt  accrues,  and  what  is  the 
reason  of  the  tradesman' s  requiring  that  promise  \  it  is 
because  he  will  not  trust  the  person  for  whose  use  the 
goods  are  intended  ; "  and  the  plaintiff  had  a  verdict.  He 
added,  that  the  reasoning  of  Lord  Mansfield  struck  him 
very  forcibly,  and  that  if  it  was  a  new  question  the  leaning 
of  his  mind  would  be  that  way.  "But,"  he  continued, 
"the  authorities  are  not  now  to  be  shaken  ;  and  the  gene- 
ral line  now  taken  is,  that  if  the  person  for  whose  use  the 
goods  are  furnished  be  liable  at  all,  any  other  promise  by 
a  third  person  to  pay  that  debt  must  be  in  writing,  other- 
wise it  is  void  by  the  statute  of  frauds."  So,  judgment 
was  given  for  the  defendant  without  hearing  his  counsel. 


216  Collateral  Undertakings.  [Ch.  vi. 

AETICLE  11. 

Where  the  consideration  consisted  of  money,  property,  or  services  furnished  to  the  third  person 
at  his  request,  but  he  made  no  express  promise  to  pay  for  them,  the  test  of  the  promisor's 
liability  is,  whether  any  credit  was  given  to  the  third  person. 

%  14:1.'  Mats  on  v.  Wliaram,  being  the  case  where  the 
rule  was  finally  settled,  that  if  the  third  person  was  liable 
at  all,  the  promisor' s  undertaking  is  collateral,  and  vice- 
versa,  it  is  generally  regarded  as  the  starting  point  of  the 
principle ;  although,  as  has  been  already  shown,  the  doctrine 
was  very  clearly  stated  eighty-three  years  earlier  in  BirTc- 
myr  v.  Darnell.  In  the  latter  case  is  also  to  be  found  the 
germ  of  the  rule,  by  which  the  application  of  the  general 
principle  is  regulated,  in  cases  where  the  consideration  of 
the  promise  consisted  of  something  furnished  by  the  prom- 
isee, directly  to  the  third  person,  and,  at  the  time  of  the 
completion  of  the  transaction,  no  express  promise  to 
respond  for  the  price  had  been  made  by  the  latter ;  or 
where  such  a  promise  was  tendered,  but  the  facts  are  such 
as  to  leave  it  in  doubt  whether  it  was  accepted  by  the 
other  party.  It  is  manifest,  that  if  an  express  promise  to 
pay  has  been  made  by  him  who  received,  and  accepted  by 
him  who  furnished  the  consideration,  no  question  can 
possibly  arise  respecting  the  liability  of  the  former  ;  and 
therefore,  upon  the  principle  already  stated,  the  promise 
of  any  other  person  to  respond  for  the  same  debt,  only 
"comes  in  aid"  of  the  original  debtor's ;  that  is  to  say, 
it  is  a  collateral  promise,  and  can  only  be  proved  by  a 
writing  which  will  satisfy  the  statute. 

§  148.  But  althoiigh  the  distinction  between  a  promise 
which  is  merely  tendered,  and"  one  which  is  tendered  and 
accepted,  is  very  sharply  defined  in  theory,  its  practical 
demarkation  is  frequently  a  matter  of  difiiculty.  For 
cases  of  this  kind  generally  present  a  state  of  facts,  where 
an  express  promise  was  tendered  by  the  person  benefited, 
and  the  conduct  of  the  promisee  leaves  room  for  doubt 
whether  it  was  or  was  not  accepted.  In  very  many  of 
them,  the  person  whom  we  style  the  promisor  was  called  in, 
only  after  the  third  person  had  unsuccessfully  endeavored 


Art.  II.  1  Collateral  Undertakiis^gs.  217 

to  obtain  the  money,  property  or  services  bargained  for, 
upon  his  own  express  promise  to  pay ;  and  the  promise,  so 
tendered,  although  the  promisee  declined  to  receive  it  as 
his  only  reliance  for  the  price,  was  not  withdrawn,  expressly 
or  impliedly,  at  any  time  during  the  subsequent  negotia- 
tions. The  question  then  aiises,  did  the  promisee  abso- 
lutely and  permanently  reject  the  third  person's  promise, 
or  was  the  first  rejection  only  temporary  ;  that  is  to  say, 
until  it  was  fortified  by  the  additional  promise  of  another, 
in  whose  ability  to  pay  he  had  sufiicient  confidence,  to 
induce  him  to  part  with  the  consideration,  upon  the  secur- 
ity of  hotJi  promises  %  And  in  all  other  cases  of  doubt,  the 
facts  generally  present  similar  features,  at  least  to  the 
extent  that  the  third  person  has  so  conducted  himself, 
that  the  question  whether  he  is  liable  to  the  promisee, 
depends  entirely  upon  an  acquiescence  by  the  latter,  suffi- 
cient to  create  the  "aggregatio  mentium"  which  completes 
a  contract. 

§  149.  It  is  evident  that  in  such  cases,  the  matter  of 
inquiry  relates  to  an  operation  of  the  mind  of  the  prom- 
isee ;  that  is,  whether  he  ga^oe  credit  to  the  third  person,  as 
well  as  to  the  express  promisor.  The  rule  in  such  cases 
is  therefore  said  to  be,  that,  if  the  promisee  gave  any  credit 
whatever,  however  small  and  secondary,  to  the  third  per- 
son, the  undertaking  of  the  other  is  collateral  and  must 
be  in  writing.  In  order  to  make  it  an  original  promise, 
the  fact  must  appear,  that  as  between  the  promisee  and  the 
person  expressly  undertaking  for  the  price,  the  sale  or 
loan  was  made,  or  the  services  rendered,  exclusively  upon 
the  latter' s  credit;  so  that  in  the  eye  of  the  law,  the  third 
person  was  but  a  conduit,  through  which  the  promisor 
received  the  subject-matter  of  the  contract,  from  the  prom- 
isee ;  although  in  fact  it  may  have  enured  entirely  to  the 
third  person's  benefit. (a) 

(a)  This  principle  is  very  clearly  laid  down  in  the  report  in   1  Salkeld,  of 
Birkmyr  v.  Darnell  (ante  §  143),  but  the  cases  which  most  satisfactorily  illus- 
trate it  in  practice  are  Simpson  v.  Penton,  2  Crompton  and  Meeson,  430,  and 
28 


218  Collateral  Undertakings.  [Ch.  yl 

§  150.  It  would  seem  to  be  hardly  necessary  to  say,  that 
whether  any  credit  was  given  to  the  third  person,  is  a 
question  of  fact  to  be  passed  upon  by  the  jury,  if  the  evi- 
dence leaves  room  for  any  doubt  upon  that  subject ;  and 
yet,  in  some  of  the  English  and  American  cases,  includ- 
ing those  of  comparatively  modern  date,  the  court 
has  undertaken  to  decide  the  question,  under  circum- 
stances which  left  it  open  to  considerable  doubt.  (5)  But 
notwithstanding  these  anomalies,  it  may  be  said  to  be  a 
rule  now  universally  recognized,  that  in  all  cases  of  this 
kind,  except  those  where  the  language  of  the  promise 
implies,  that  the  third  person  is  to  be  resorted  to  in  the 
first  place,  the  jury  are  to  pass  upon  the  question  to  whom 
credit  was  given,  if  the  conduct  of  the  promisee  is  at  all 
equivocal ;  and  in  so  doing,  they  are  bound  to  take  into 
consideration  all  the  attending  circumstances.  Several 
illustrations  of  this  principle  will  be  given  in  the  subse- 
quent portions  of  this  and  the  following  chapters,  (c) 

§  151.  This  elementary  analysis  of  the  principles  upon 
which  the  doctrine  depends,  will  materially  assist  us  in 
determining,  not  only  the  application  of  the  doctrine  itself 

Pearce  v.  Blagrave,  3  Common  Law  Reports,  338,  both  of  which  will  be 
found  cited  at  length  in  the  third  article  of  this  chapter.  The  case  of 
Leggat  V.  Reed,  1  Carrington  and  Payne,  16,  A.  D.  1823,  also  very  forci- 
bly illustrates  the  propositions  contained  in  the  text,  although  no  question 
under  the  statute  of  frauds  arose  therein.  It  was  an  action  for  work  and 
labor  in  putting  up  a  door  in  a  house  belonging  to  one  Earl,  and  it  was 
shown  that  the  defendant  had  given  the  order  for  the  work,  but  he  con- 
tended that  he  had  only  acted  in  behalf  of  Earl,  and  it  appeared  that  the 
plaintiff  had  made  out  his  bill  against  Earl,  which  he  had  left  at  the  house. 
Park,  J.,  said,  "  that  if  the  plaintiff  had  once  given  credit  to  Earl,  he  could 
never  shift  his  claim,  to  charge  the  defendant  or  any  other  person."  He 
then  left  it  to  the  jury  to  say  to  whom  the  credit  was  given,  and  they  found 
a  verdict  for  the  defendant.  See  also  several  cases  cited  in  the  fifth  article 
of  this  chapter. 

(b)  See  Parsons  v.  Walter,  in  note  to  §  145,  also  Croft  v.  Smallwood,  and 
Rains   v.  Storry,  in  the  next  succeeding  article. 

(c)  The  question  how  far  the  jury  are  entitled  to  pass  upon  the  character 
of  the  promise  will  be  more  fully  discussed  in  the  fifth  article  of  this  chapter. 


Art.  III.]         Collateral  Undertakings.  219 

to  several  of  tlie  border  cases,  but  also  the  solution  of 
some  perplexing  questions,  wliicli  incidentally  arise  in 
the  course  of  the  trial  of  actions  founded  upon  verbal 
promises  of  this  character.  For  that  purpose  we  shall 
have  occasion  to  refer  to  it  again,  hereafter. 

§  152.  But  before  leaving  this  subject,  it  is  necessary  to 
say,  that  although  some  of  the  expressions  used  in  the 
cases,  may  at  times  seem  to  imply,  that  the  promisor's 
liability  depends  upon  vrhether  the  third  person  became 
liable  to  the  promisee,  at  any  time  before  actual  payment 
of  the  debt,  they  are  inadvertently,  or  for  brevity' s  sake, 
made  more  comprehensive  with  respect  to  time,  than  is 
strictly  consistent  with  accuracy.  Manifestly  such  lia- 
bility depends  only  upon  what  had  taken  place,  when  the 
contract  was  consummated ;  and  if  at  that  time,  it  was  not 
within  the  statute,  the  result  cannot  be  affected  by  events 
which  may  have  subsequently  happened  ;  even  if  these 
should  have  the  effect,  to  render  the  third  person  also 
liable  to  the  promisee  for  the  same  dLeht.{d) 


ARTICLE  III. 

English  cases  upon  the  qnestion  of  credit  to  the  third  person. 

§  153.  Resuming  the  consideration  of  the  English  cases 
upon  this  branch  of  our  subject,  where  we  left  it  at  the 
conclusion  of  the  first  article  of  this  chapter,  the  next  case 
in  chronological  order  was  Anderson  v,  Hayman,  1  Henry 
Blackstone,  120,  decided  A.  D.  1789.  There  the  defendant 
had  applied  verbally  to  the  plaintiff  to  supply  his  son,  a 
trader  to  the  West  Indies,  with  goods  on  his  (the  defend- 
ant's)  credit,  and  he  added,  "  Use  my  son  well,  charge  him 
as  low  as  possible ;  and  I  will  be  bound  for  the  payment 
of  the  money,  as  far  as  800^.  or  lOOOZ."  Afterwards  the 
son  received  from  the  plaintiff  goods  to  the  amount  of 

{d)  Roberts  on  Frauds,  223;  Browne  on  Frauds,  §  164;  Elder  v.  Warfield 
7  Harris  and  Johnson  (Maryland),  391;  Tarr  v.  Northey,  17  Maine,  113; 
Mease  v.  Wagner,  1  McCord  (South  Carolina),  395. 


220  COLLATEEAL   UnDBKTAKINGS.  [CIl.  VI. 

800?.,  wMcli  were  delivered  to  him  in  consequence  of  the 
father's  engagement,  and  the  goods  were  charged  to  the 
son  in  the  books  of  the  plaintiff.  The  plaintiff,  having 
applied  to  the  son  for  payment,  was  put  off  with  a  letter, 
insisting  that  a  further  term  of  credit  had  been  agreed 
upon,  and  promising  to  pay  at  the  expiration  of  that 
term  ;  and,  the  son  having  become  bankrupt,  the  plaintiff 
sued  the  father  for  the  value  of  the  goods.  Mr.  Justice 
Heath,  who  tried  the  cause,  directed  the  jury  to  con- 
sider whether  the  plaintiff  gave  credit  to  the  defendant 
alone,  or  to  him  together  with  his  son ;  and  that  if  any 
credit  whatever  was  given  to  the  son,  the  promise  was 
within  the  statute.  The  jury  found  a  verdict  for  the 
defendant ;  which  the  court,  upon  a  rule  nisi  for  a  new 
trial,  refused  to  set  aside,  holding  that,  "this  promise, 
not  being  in  writing,  was  void  by  the  statute  of  frauds,  as 
it  appeared  from  the  evidence  of  the  lettet  of  Hayman 
the  younger,  that  credit  was  given  to  him,  as  well  as  to 
the  defendant." 

§  164.  In  Oroft  v.  Smallwood,  1  Espinasse'  s  Reports, 
121,  A.  D.  1793,  the  plaintiff,  who  was  a  tailor,  had  made 
some  clothes  for  one  Foster,  and  they  had  been  sent  home 
by  the  plaintiff's  foreman,  he  being  out  of  town;  but 
Foster,  not  having  paid  for  them,  as  he  promised,  the 
foreman  had  prevailed  upon  him  to  return  the  clothes ; 
whereupon  the  defendant  came  to  the  plaintiff's  shop, 
and  said  that  if  the  plaintiff  would  send  the  clothes  again 
to  Foster,  he  (the  defendant)  would  pay  for  them,  and 
they  were  sent  accordingly.  It  was  objected  that  this 
was  within  the  statute,  because  Foster  was  liable,  and  the 
original  credit  was  given  to  him  ;  and  Matson  v.  Wharam 
was  cited  for  the  defendant.  But  Lord  Chief  Justice  Eyre 
held,  "that  the  case  was  not  within  the  statute  of  frauds ; 
that  the  whole  credit  was  given  to  the  defendant,  and  he 
was  liable."  Tlie  report  concludes  here,  and  it  would, 
therefore,  appear  that  the  Chief  Justice  left  nothing  to  the 
jury  upon  this  branch  of  the  case. 


Art.  III.]         Collateral  Undertakings.  221 

§  155.  The  next  case,  Keate  v.  Temple,  1  Bosanquet  and 
Puller,  158,  decided  in  1797,  is  a  striking  illustration  of 
the  rule,  that  all  the  circumstances  of  the  case  are  to  be 
taken  into  consideration,  in  determining  the  question 
whether  the  credit  was  given  to  the  defendant  alone. 
There  the  plaintiff  was  a  tailor  and  slop  seller  at  Ports- 
mouth ;  and  the  defendant,  who  was  the  first  lieutenant 
of  the  Boyne,  a  ship  of  war,  applied  to  him  to  supply  the 
crew  with  new  clothes,  saying,  "I  will  see  you  paid  at 
the  pay  table;  are  you  satisfied?"  to  which  the  plaintift' 
answered,  "Perfectly  so;"  and  the  goods  were  supplied 
accordingly.  It  appeared  that  some  of  the  men  were 
unwilling  to  take  the  clothes,  but  were  told  by  the  defend- 
ant that  unless  they  did  so,  he  would  punish  them.  Soon 
after  the  delivery  the  ship  was  burned,  and  the  crew 
dispersed  into  different  ships ;  after  which  the  defendant 
again  promised  that  he  and  the  captain  would  see  the 
plaintifi"  paid.  The  commissioner  having  come  on  board 
a  vessel  in  port  to  pay  the  crew  of  the  Boyne,  the  defend- 
ant attempted  to  take  out  of  each  man' s  pay  the  value  of 
the  clothes  which  he  had  received;  but,  although  they 
were  threatened  with  being  put  in  irons,  the  men  refused 
to  part  with  their  pay  to  the  plaintiff,  whereuj)on  the 
defendant  applied  to  the  commissioner  to  stop  the  pay  of 
the  crew,  which  the  latter  refused  to  do.  Tlie  plaintiff 
thereupon  sued  the  lieutenant,  and  recovered  a  verdict  for 
676Z.  Is.  8d.,  upon  a  charge,  leaving  it  to  the  jury  to 
determine,  whether  the  goods  were  advanced  upon  the 
credit  of  the  defendant  as  immediately  responsible,  or 
upon  the  expectation,  on  the  part  of  the  plaintiff,  to  get 
his  money  from  the  crew,  with  the  defendant' s  assistance. 

§  156.  There  was  a  rule  nisi  for  a  new  trial,  aga^ist 
which  cause  was  shown  that  the  question  had  been  left  to- 
the  jury  upon  a  proper  charge.  But  the  court  directed 
a  new  trial,  being  dissatisfied  with  the  finding  of  the  jury 
upon  the  evidence.  Eyre,  C.  J.,  said  that  the  amount  of 
the  plaintiff' s  demand  was  so  large,  that  it  could  hardly 
be  supposed  that  a  lieutenant  in  the  navy  intended  to 


222  Collateral  Undertakings.  [Ch.  vi, 

make  himself  responsible  for  goods  of  tliat  value,  or  that 
a  slop  seller  would  furnish  them  upon  his  credit.  He 
also  said  that  it  was  apparent,  from  the  nature  of  the  case, 
that  the  men  were  to  pay  in  the  first  instance  ;  and  such 
was  the  meaning  of  the  defendant' s  promise.  The  ques- 
tion was,  he  continued,  whether  the  plaintiff  did  not  rely 
upon  the  defendant' s  power  over  the  fund  out  of  which 
the  men  were  to  be  paid,  and  did  not  prefer  giving  credit 
to  that  fund,  rather  than  to  the  lieutenant,  "who,  if  we  are 
to  judge  of  him  by  others  in  the  same  situation,  was  not 
likely  to  be  able  to  raise  so  large  a  sum."  Considering, 
therefore,  the  whole  bearing  of  the  evidence,  and  that  the 
judge  who  tried  the  cause  had  not  expressed  himself 
satisfied  with  the  verdict,  he  thought  the  case  a  proper 
one  for  a  new  trial ;  and  with  him  the  other  judges  con- 
curred. 

§  157.  The  next  case  was  TJiompsouY.  Bond,  1  Campbell, 
4,  decided  A.  D.  1807.  There  the  plaintiff,  a  publican, 
sued  to  recover  the  sum  of  45?.  for  having  at  an  election 
employed  himself  in  canvassing  for  Mr.  Sheridan' s  elec- 
tion as  member  of  parliament,  and  opened  his  house  for 
the  entertainment  of  voters  in  that  interest,  at  the  instance 
of  the  defendant,  and  upon  the  defendant' s  promise  to  see 
him  paid.  The  promise  was  not  denied ;  but  it  was  con- 
tended on  the  part  of  the  defendant,  that  the  plaintiff  had 
given  credit  in  the  first  instance  to  Mr.  Sheridan' s  com- 
mittee, and  that  the  defendant's  promise  was  therefore 
within  the  statute.  It  was  proved  that  the  defendant  said 
that  he  had  authority  from  the  committee  to  open  the 
house ;  and  that,  before  making  any  demand  upon  the 
defendant,  the  plaintiff  sent  in  his  bill  to  the  committee, 
and^  wrote  the  defendant  a  letter,  requesting  his  good 
offices  to  get  the  bill  discharged.  The  plaintiff  also 
showed,  on  cross-examination  of  one  of  the  defendant's 
witnesses,  that  the  committee  did  not  authorize  the  defend- 
ant to  engage  the  plaintiff  or  to  open  the  house ;  and  his 
counsel  contended  that  as  they  were  not  liable,  the  defend- 
ant was  liable  for  the  demand.     But  Lord  Ellenborough 


Art.  III.]         Collateral  Undertakings.  223 

held  that  the  undertaking  of  the  defendant  was  merely 
that  he  would  see  the  plaintiff  paid,  which  in  law  is  only 
a  collateral  promise  to  pay  the  debt  of  another ;  and  had 
he  been  authorized  by  tlie  committee,  so  that  they  would 
have  been  liable,  it  would  have  been  void  for  not  being  in 
writing.  But,  although  it  appeared  that  he  was  not  author- 
ized, the  debt  could  not  be  considered  as  that  of  the 
defendant ;  because,  when  one  induces  another  to  deal  with 
him,  on  the  credit  of  a  third,  he  is  liable  for  the  deceitful 
representation ;  but  the  person  with  whom  he  dealt  cannot 
recover,  as  upon  a  contract  which  was  never  entered  into. 
The  Chief  Justice,  however,  left  it  to  the  jury  to  say 
whether  the  refreshments,  which  the  defendant  himself 
consumed,  were  furnished  to  him  on  his  own  credit,  or  upon 
the  representation  that  the  committee  desired  the  house  to 
be  opened  for  the  candidate' s  friends  ;  saying  that  in  the 
latter  case,  which  seemed  the  more  probable,  the  defend- 
ant was  entitled  to  a  verdict  on  the  whole  declaration ;  but 
the  jury  found  for  the  plaintiff  with  101.  damages. (a) 

§  158.  And  in  Darnell  v.  Tratt.,  2  Carrington  and 
Payne,  82,  A.  D.  1825,  there  was  an  absence  of  all  direct 
proof  of  an  original  undertaking  by  the  defendant ;  but 
it  was  left  to  be  inferred  by  the  jury  from  all  the  cir- 
cumstances of  the  case.  The  case  was  as  follows.  The 
plaintiff  was  a  schoolmaster,  and  sued  the  defendant  for 
the  board  and  tuition  of  the  latter' s  nephew.  It  appeared 
that  the  boy  was  left  at  the  school  by  his  mother,  during 
the  father's  life-time  (the  father  having  died  soon  after- 
wards), and  that  the  plaintiff  and  the  mother  had  an  inter- 
view at  the  time  ;  but  there  was  no  evidence  of  what  took 
place  at  the  interview.  After  the  boy  had  been  some  time 
at  the  scliool,  the  plaintiff  sent  a  bill  to  the  defendant,  who 
said,  "that  it  was  quite  right  to  send  him  the  bill,  for  he 
was  answerable  for  young  Jeremy ; "  that  he  could  not  con- 
fa)  The  next  case,  in  chronological  order,  upon  this  question,  was  Coleman 
V.  Eyles,  2  Starkie,  62,  A.  D.  1817,  but  it  presents  no  features  requiring  par- 
ticular comment. 

« 


224  COLLATEEAL  UNDERTAKINGS.  [Oil.  VI. 

veniently  pay  it  then  ;  but  when  the  next  bill  became  due 
he  would  settle  them  both  together.  The  judge  left  it  to 
the  jury  to  say  to  whom  the  credit  was  given ;  and  the 
plaintiflf  having  recovered  a  verdict,  with  leave  to  the 
defendant  to  move  to  enter  a  nonsuit,  the  defendant's 
counsel  moved  accordingly.  He  contended  that  there  was 
nothing  to  go  to  the  jury,  as  the  presumption  was  that  the 
credit  was  originally  given  to  the  mother,  the  defendant 
not  appearing  to  have  been  a  party  to  the  original  con- 
tract ;  and  hence  that  the  defendant' s  promise  was  collat- 
eral. But  all  the  judges  held  that  it  was  a  fair  question 
for  the  jury,  whether  the  mother  was  not  originally  acting 
as  the  agent  for  the  defendant,  and  therefore  refused  the 
rule. 

§  159.  The  same  principle  was  applied,  although  the 
court  seems  to  have  interfered  with  the  province  of  the 
jury,  in  the  nisi  prius  case  of  Rains  v.  Storry,  3  Carring- 
ton  and  Paine,  130,  decided  A.  D.  1827.  There  the  declara- 
tion was  in  assumpsit  for  goods  sold  and  delivered  to  the 
defendant ;  and  the  evidence  showed  that  they  were  ordered 
by  a  Mrs.  Stoker  from  one  Evelyn,  a  bankrupt,  whose 
assignees  were  the  plaintiffs.  Evelyn's  traveller,  who 
received  the  order,  called  upon  the  defendant,  whom  she 
had  named  as  her  reference,  saying  that  he  would  not 
send  the  goods  without  the  defendant's  authority.  The 
defendant,  after  some  inquiry  as  to  the  amount,  terms,  etc., 
of  the  order,  said:  "You  may  send  them,  and  I'll  take 
care  that  the  money  shall  be  paid  at  the  time."  The 
goods  were  delivered  to  Mrs.  Stoker,  and  Evelyn  soon 
afterwards  wrote  to  the  defendant  asking  him  to  accept  a 
bill  for  the  price  ;  to  which  he  answered  that  he  was  not 
in  the  habit  of  accepting  bills,  but  that  the  money  would 
be  paid  when  due.  At  this  stage  of  the  case  the  defend- 
ant' s  counsel  insisted  that  the  evidence  showed  the  prom- 
ise to  be  collateral,  apparently  for  the  purpose  of  objecting 
that  the  declaration  should  have  been  special ;  but  Best, 
C.  J.,  held  that  there  was  some  evidence  of  a  direct  under- 
taking ;  and  counsel  then  insisting  that  it  should  be  in 


Art.  III.]  COLLATEEAL   UNDERTAKINGS.  225 

writing,  he  said  that,  if  the  defendant  could  show  that  any 
credit  was  given  to  Mrs.  Stoker,  the  case  would  be  brought 
within  the  rule  in  Matson  v.  Wharam  ;  and  if  a  bill  had 
been  sent  to  her,  he  would  nonsuit  the  plaintiff.  The 
defendant  then  put  in  a  letter  from  the  plaintiffs'  attorney 
to  Mrs.  Stoker,  calling  on  her  for  payment,  and  threatening 
a  suit ;  and  two  from  the  bankrupt  to  the  defendant,  speak- 
ing of  the  demand  as  one  which  he  had  guarantied. 
Whereupon  the  Chief  Justice  nonsuited  the  plaintiff, 
giving  his  counsel  leave  to  move ;  but  the  report  adds  that 
no  motion  was  ever  made.(&) 

§  160.  The  case  of  Simpson  v.  Penton,  2  Crompton  and 
Meeson,  430,  and  4  Tyrrwhitt,  315,  A.  D.  1834,  is  one  of  the 
most  interesting  and  instructive  upon  this  branch  of  the 
statute ;  as  it  pushed  the  principles  which  we  have  been 
considering  to  their  extreme  logical  consequences.  It  was 
an  action  by  the  promisor  against  the  third  person,  to 
recover  the  amount' paid  by  him,  upon  an  undertaking 
similar  to  those  which  have  been  held  valid,  in  the  cases 
previously  cited.  The  plaintiff  had  introduced  the  defend- 
ant to  one  Ovenston,  an  upholsterer,  and  had  asked  the 
latter  to  supply  the  defendant  Avitli  some  furniture,  adding, 
that  he  (the  plaintiff)  "would  be  answerable  for  it,"  and 
"would  see  it  paid  at  the  end  of  six  months."-  Upon  this 
undertaking  the  goods  had  been  delivered  to  the  defend- 


(b)  It  would  seem  that  this  nonsuit  was  erroneous,  according  to  the  modern 
cases  in  England  and  the  United  States.  If  the  case  turned  solely  upon  the 
question  to  whom  credit  was  given,  upon  the  original  contract  of  purchase 
and  sale,  supposing  it  to  have  been  incomplete  when  the  traveller  called  upon 
the  defendant,  the  judge  clearly  erred  in  taking  it  from  the  jury;  for  the 
letters. were  all  written  after  the  transaction,  and  were  only  evidence  of 
what  it  was  originally;  the  weight  of  which  it  was  the  province  of  the  jury 
to  pass  upon.  The  only  doubt  arises  upon  the  the  terms  of  the  original 
transaction  with  Mrs.  Stoker.  The  language  of  the  report,  and  still  more 
the  argument  of  the  defendant's  counsel,  leave  room  for  the  inference  (hat 
the  traveller  agreed  with  her  to  send  the  goods  before  he  saw  the  defendant. 
But  it  would  seem  that  that  question  was  disposed  of,  when  the  judge 
refused  to  nonsuit  on  the  point  of  pleading. 

29 


226  Collateral  Undeetakings.  [Ch.  vi. 

ant  on  a  credit  of  six  months,  and  charged  to  "Mr.  Penton 
per  Mr.  Simpson." (c)  The  defendant  not  having  paid  at 
the  expiration  of  the  six  months,  the  upholsterer,  without 
applying  to  him,  called  upon  the  plaintiff;  who  settled  the 
demand,  and  sued  the  defendant  for  the  amount.  At  the 
trial  the  defendant  took  the  objection,  with  others,  that 
the  plaintiff's  undertaking  to  the  upholsterer  was  a  mere 
guaranty,  and  therefore  void  by  the  statute  of  frauds; 
and  hence  the  payment,  without  any  special  request  of 
the  defendant,  raised  no  implied  promise  on  the  part  of 
the  latter  to  repay.  But  the  judge  overruled  the  objection, 
and,  in  substance,  left  it  to  the  jury  to  say  whether  the 
goods  were  furnished  upon  the  credit  of  the  plaintiff 
exclusively,  to  be  paid  for  by  him  in  the  first  instance, 
and  they  found  a  verdict  for  the  plaintiff. 

§  161.  Leave  having  been  reserved  for  that  purpose,  the 
defendant  subsequently  moved  for  a  rule  tO  enter  a  non- 
suit, which  the  court  refused.  Bayley,  B.,  after  saying 
that  the  expressions,  "I'll  be  answerable,"  and  "I'll  see 
you  paid,"  are  equivocal,  and  that  the  court  must  look 
into  the  circumstances  to  ascertain  whether  the  contract 
was  original  or  collateral,  added,  "Here  it  is  quite  clear 
that  the  goods  were  furnished  for  Penton' s  benefit ;  but  it 
does  not  appear  that  he  said  one  word  by  which  he  pledged 
himself,  so  as  to  give  Ovenston  a  right  to  call  upon  him." 
"It  was  left  to  the  jury  to  say  whether  he"  (Simpson) 
"was  the  original  debtor,  and  they  have  found  that  he  was. 
I  think  the  jury  were  warranted  in  that  finding.  My  opin- 
ion is  founded  substantially  upon  the  facts  of  the  case, 
and  not  on  the  equivocal  expressions,  as  I  consider  the 
words  capable  of  being  explained  by  other  circumstances. 
I  am  satisfied,  that,  although  Ovenston  was  willing  to  see 
if  Penton  would  pay,  he  never  had  a  legal  claim  upon 
him,  but  upon  Simpson  only. ' '    The  other  judges  delivered 

(c)  The  reports  differ  as  to  whether  the  order  was  given  by  the  plaintiff  or 
the  defendant,  but  they  agree  that  the  defendant  directed  the  goods  to  be 
sent  to  his  house. 


Art.  III.]  COLLATEEAL  UNDERTAKINGS.  227 

brief  opinions,  to  the  effect  that  tlie  goods  having  been 
furnished  upon  the  credit  of  Simpson,  and  the  defendant 
having  stood  by  and  allowed  Simpson  to  pledge  his 
credit  for  him,  he  became  liable  to  repay  the  money  paid 
by  Simpson  on  his  account,  (c?) 

§  162.  The  principle  under  consideration  was  again 
recognized  in  1836  by  the  decision  in  Andrews  v.  Smithy 
2  Crompton,  Meeson  and  Roscoe,  627,  which,  however, 
chiefly  turned  on  another  point,  in  connection  with  which 
it  is  cited  elsewhere.  We  will  conclude  these  citations 
from  the  English  reports  with  an  abbreviation  of  a  modern 
case  in  the  Common  Pleas,  which  shows  how  puzzling  the 
application  of  this  apparently  simple  principle,  sometimes 
becomes  in  practice.  The  discussion  between  the  court 
and  counsel,  (who  made  a  heroic  but  unavailing  struggle 
for  his  client  against  overwhelming  odds,)  will,  it  is 
believed,  shed  much  light,  not  only  upon  this  question,  but 
upon  some  others  nearly  akin  to  it,  which  we  shall  here- 
after have  occasion  to  consider. 

§  163.  In  Pearce  v.  Blagrane,  3  Common  Law  Reports, 
338,  decided  in  1855,  the  action  was  for  money  lent  and 
paid ;  and  the  proof  was  that  a  fieri  facias  had  issued  in 
favx)r  of  one  Jones  against  one  Sayre,  under  which  the 
sheriff' s  officer  had  levied  upon  Sayre' s  goods  ;  and  Sayre 
desired  the  plaintiff  to  lend  him  the  money  to  pay  off  the 
execution.  This  the  plaintiff  declined  to  do ;  and  soon 
afterwards  the  defendant  (but  not  in  Sayre' s  presence) 
said  to  the  plaintiff,  "Well,  pay  it  for  me,  and  I  will 
repay  you."  Thereupon  the  plaintiff  paid  the  money  to 
the  sheriff's  officer,  and  this  action  was  brought  to  recover 

(d)  It  seems  to  have  been  assumed,  that,  if  the  original  contract  was  within 
the  statute,  the  action  could  not  be  maintained.  But  it  has  been  ruled  in 
Massachusetts,  in  a  very  parallel  case,  that  the  objection  arising  out  of  the 
statute  is  personal  to  the  guarantor;  and,  if  he  chooses  to  waive  it,  and  pay 
the  amount  of  the  debt,  the  principal  cannot  object  that  he  might  have  suc- 
cessfully resisted  the  creditor's  claim,  on  the  ground  that  the  promise  was 
not  in  writing.     Beal  v.  Brown,  95  Massachusetts  (13  Allen),  114. 


228  COLLATEEAL  UnDEETAKINGS.  [Cll.  VI. 

it.  It  was  objected  that  the  promise  was  within  the  stat- 
ute ;  but  the  plaintiff  had  a  verdict,  which  the  defendant 
moved  to  set  aside.  Serjeant  Byles  in  his  behalf,  insisted 
that  the  payment  of  the  money  created  a  debt  against 
Sayre,  on  the  ground  that  it  was  done  in  pursuance  of 
a  precedent  request  by  him.  To  which  Maule,  J., 
answered,  that  the  advance  to  Sayre  was  declined;  and 
the  case  was  the  same  as  if  Sayre  had  asked  the  plaintiff 
to  lend  him  the  money,  and  the  latter  had  declined ;  and 
then  the  defendant  had  borrowed  the  money  from  the 
plaintiff,  and  paid  it  to  the  officer.  The  counsel  replied, 
that  the  plaintiff  refused  to  make  the  advance  on  Sayre' s 
request  alone,  but  it  was  made  after  that  request,  and  not 
the  less  upon  Sayre' s  request  because  it  was  also  made 
upon  another's.  Whereupon  Maule,  J.,  asked  if  there 
was  a  joint  liability ;  and  the  counsel  disclaiming  the  idea 
of  a  joint  liability,  and  insisting  that  one  liability  was 
express  and  the  other  implied,  and  that  the  plaintiff  could 
have  sued  Sayre,  because  Sayre  assented  to  the  advance ; 
Cresswell,  J.,  said,  that  he  could  not  have  sued  Sayre, 
anless  there  was  a  request  from  him,  and  an  advance  of 
money  upon  his  request ;  that  mere  assent  was  not  suffi- 
cient ;  it  was  evidence  of  a  request,  but  not  equivalent  to 
it.  Jervis,  C.  J.,  added,  that,  upon  all  the  facts,  no  action 
could  be  maintained  against  Sayre ;  that  the  advance  was 
not  even  in  his  presence.  Counsel  still  insisting  that 
Sayre  was  liable,  Cresswell,  J.,  concluded  by  saying  that 
he  could  not  be  liable  before  the  advance ;  and,  when  it 
was  made,  it  was  made  upon  the  defendant' s  request,  as 
he  said,  "  Pay  it  for  me ;"  and  so  the  rule  was  refused. 


ARTICLE  IV. 

Amerioan  cases  establishing  and  illustrating  the  general  rule,  and  npon  the  question  of  credit 

to  the  third  person. 

§  164.  In  treating  of  the  American  cases  governed  by 
the  third  rule,  we  find  ourselves  embarrassed  with  the 
abundance  of  materials  at  our  command.  Not  only  are 
the  cases  very  numerous,  but  there  is  a  great  variety  in 


Art.  IV.]  Collateral  Undertakings.  229 

the  facts  which  they  present,  raising  many  nice  shades 
of  distinction  respecting  the  correct  application  of  the 
general  rule ;  and  also  various  scarcely  less  important 
questions  of  evidence,  construction,  and  the  like,  peculiar 
to  this  class  of  cases.  In  making  a  selection  among  them, 
the  earlier  cases  will  be  given,  with  sufficient  fullness  to 
show  the  origin,  growth,  and  general  application  of  the 
rule  in  the  United  States;  and  among  the  more  recent 
cases,  we  shall  endeavor  to  present  those,  where  a  similar 
state  of  facts  is  likely  to  recur  most  frequently,  or  where 
the  case  also  presents  one  or  more  of  the  incidental  ques- 
tions, which  we  shall  be  called  upon  to  discuss,  before 
taking  leave  of  this  branch  of  our  subject. 

§  165.  But  first  we  have  to  notice  a  dictum,  which, 
though  proceeding  from  an  eminent  source,  and  referred 
to  with  approbation  by  several  judges,  is  at  war  with  the 
principle  settled  by  a  great  number  of  cases,  and  has 
never  been  accepted  as  authority.  In  i)'  Wolf  v.  Rabaud, 
1  Peters,  476,  A.  D.  1828,  (a)  the  question  arose  as  to  the 
sufficiency  of  a  written  agreement  to  satisfy  the  statute 
of  frauds,  and  the  admissibility  of  parol  evidence  to 
supply  its  deficiencies  ;  but,  in  pronouncing  judgment. 
Mr.  Justice  Story  took  occasion  to  express  his  dissatisfac- 
tion with  the  doctrine,  that  the  statute  applies  to  every 
case,  where  the  collateral  promise  (so  called)  was  a  part 
of  the  original  agreement,  and  founded  upon  the  same 
consideration.  (5)     But  the  learned  Justice  at  the  same 

(a)  S.  C.  in  the  court  below,  1  Paine's  Circuit  Court,  580. 

(6)  He  said,  "Whether  by  the  true  intent  of  the  statute,  it  was  to  extend 
to  cases,  where  the  collateral  promise  (so  called)  was  a  part  of  the  original 
agreement,  and  founded  on  the  same  consideration,  moving  at  the  same  time 
between  the  parties;  or  whether  it  was  confined  to  cases  where  there  was 
already  a  subsisting  debt  and  demand,  and  the  promise  was  merely  founded 
upon  a  subsequent  and  distinct  undertaking,  might,  if  the  point  were 
entirely  new,  deserve  very  grave  consideration.  But  it  has  been  closed 
within  very  narrow  limits  by  the  course  of  the  authorities,  and  seems  scarcely 
open  for  examination;  at  least  in  those  states  where  the  English  authorities 
have  been  fully  recognized  and  adopted  in  practice.     If  A  agree  to  advance 


230  Collateral  Undertakings.  [Ch.  yi. 

time  admitted  that  the  course  of  the  authorities  was 
against  him,  and,  as  we  have  already  stated,  the  case 
went  off  upon  the  other  points.  In  Townsley  v.  Sumrall^ 
2  Peters,  170,  A.  D.  1829,  the  same  Justice  referred  to  the 
opinion  in  the  preceding  case,  in  these  words:  "In  cases 
not  absolutely  closed  by  authority,  this  court  has  already 
expressed  a  strong  inclination,  not  to  extend  the  operation 
of  the  statute  of  frauds,  so  as  to  embrace  original  and 
distinct  promises,  made  by  different  persons  at  the  same 
time,  and  upon  the  same  consideration,  "(c) 

§  166.  In  New  York  the  principle  established  by  the 
English  cases,  seems  to  have  been  first  presented  for  direct 
adjudication,  in  Chase  v.  Day,  17  Johnson,  114,  decided 
in  1819.(6^ )   The  action  was  to  recover  the  value  of  certain 

B  a  sum  of  money,  for  which  B  is  to  be  answerable,  but  at  the  same  time  it 
is  expressed  upon  the  undertaking  that  C  will  do  some  act  for  the  security 
of  A,  and  enter  into  an  agreement  with  A  for  that  purpose,  it  would  scarcely 
seem  a  case  of  a  mere  collateral  undertaking,  but  rather,  if  one  might  use 
the  phrase,  a  tri-lateral  Contract.  The  contract  of  B  to  repay  the  money  is 
not  coincident  with,  nor  the  same  contract  with  C  to  do  the  act.  Each  is 
an  original  promise,  though  the  one  may  be  deemed  subsidiary  or  secondary 
to  the  other.  .  .  .  The  credit  is  not  given  solely  to  either,  but  to  both, 
not  as  joint  contractors  upon  the  same  contract,  but  as  separate  contractors 
upon  co-existing  contracts,  forming  parts  of  the  same  general  transaction." 

(c)  The  distinguished  tribunal,  in  which  the  foregoing  remarks  were  made, 
has  not  since  had  occasion,  it  is  believed,  to  affirm  or  deny  their  correctness 
by  its  decision.  But  an  expression  in  the  opinion  of  Mr.  Justice  Clifford,  in 
Emerson  v.  Slater,  22  Howard,  28,  indicates  that  it  is  prepared  to  follow  the 
rule  now  so  generally  recognized,  with  respect  to  promises  of  this  character, 
even  in  cases  not  arising  in  states,  whose  courts  have,  in  express  terms, 
adopted  the  English  rule.  He  says:  "Cases  in  which  the  guaranty  or 
promiie  is  collateral  to  the  principal  contract,  but  is  made  at  the  same  time, 
and  becomes  an  essential  ground  of  the  credit  give  to  tic  principal  debtor, 
are.  in  general,  within  the  statute  of  frauds."  Although  in  a  few  instances, 
opinions  have  been  expressed  in  some  of  the  state  courts  approving,  upon 
principle,  Judge  Story's  suggestion  of  a  tri-lateral  contract,  the  author's 
researches  have  not  enabled  him  to  find  a  solitary  case  where  such  a  theory 
has  been  practically  applied  to  a  decision. 

(d)  But  it  is  recognized  as  law.  in  the  opinion  of  Kent,  C.  J.,  in  Leonard 
V.  Yredenburgh,  8  Johnson,  23,  A.  D.  1811. 


Art.  IV.]  Collateral  Undertakings.  231 

newspapers  delivered  by  the  plaintiff,  a  printer,  to  the 
nephew  of  the  defendant,  who  was  a  news-carrier,  and  the 
proof  was  that  the  defendant  called  at  the  plaintiff's  office, 
in  his  nephew's  absence,  and  after  inquiring  the  terms, 
said,  "If  my  nephew  should  call  for  papers,  I  will  be  re- 
sponsible for  the  papers  that  he  shall  take."  Soon  after- 
wards the  nephew  called  for  newspapers,  and  said  that 
his  uncle  would  be  responsible  for  them,  and  the  plaintiff 
furnished  them  to  him  then,  and  for  several  weeks  after- 
wards ;  no  regular  charge  for  the  papers  was  made  to 
any  person  upon  the  plaintiff's  books;  but  he  kept  a 
memorandum  of  the  number  delivered  to  the  nephew, 
under  the  latter' s  name,  as  he  did  with  other  news-carriers. 
The  plaintiff  recovered  (in  a  justice's  court),  and  the  Su- 
preme Court  on  certiorari  affirmed  the  judgment ;  holding 
that  the  evidence  warranted  the  inference,  that  "the  credit 
was  given  originally  and  solely  to  the  defendant;"  and 
' '  that  this  never  was  the  debt  of  the  nephew.  His  uncle 
made  the  contract ;  and  the  nephew,  when  he  took  the 
papers,  explained  that  his  uncle  would  be  responsible  for 
them." 

§  167.  In  Brown  v.  BradsTiaw,  1  Duer,  199,  A.  D.  1852, 
a  verdict  for  the  plaintiffs,  rendered  under  a  proper  charge 
of  the  judge  at  the  trial,  was  set  aside  by  the  New  York 
Superior  Court,  as  against  the  weight  of  evidence.  The 
complaint  claimed  to  recover  for  lumber  delivered  to  the 
defendant ;  and  the  evidence  showed  that  it  was  delivered 
upon  the  application  of  one  M.,  to  be  used  in  the  construc- 
tion by  him  of  certain  houses,  upon  land  belonging  to  the 
defendant,  but  which  the  defendant  had  contracted  to  sell 
to  M.  at  a  specified  price.  The  contract  between  the  defend- 
ant and  M.  also  provided,  that  the  defendant  should  make 
advances  to  him,  to  aid  in  the  erection  of  the  buildings ;  the 
advances  and  the  purchase  price  of  the  land  to  be  paid  when 
the  deed  was  given ;  audit  also  contained  a  clause  providing 
that  all  bills  for  materials  for  the  houses,  which  the  defend- 
ant might  pay  or  incur,  should  be  deemed  part  of  the  ad- 
vances.   The  evidence,  in  its  most  favorable  aspect,  tended 


232  Collateral  Undertakings.  [Ch.  vi. 

to  show  that  the  plaintiffs  delivered  the  lumber  to  M.  upon 
the  defendant' s  promise  to  one  of  the  plaintiffs,  ' '  that  he 
would  see  him  paid  for  all  the  lumber  delivered  at  those 
buildings."  A  bill  for  the  first  seven  items  of  the  account 
had  been  made  out  by  the  plaintiffs  in  the  name  of  M. ;  and 
a  payment  made  by  the  defendant  upon  the  general  account, 
had  been  rec:4pted  by  them,  as  paid  by  the  defendant  for 
M.  There  was  some  evidence  that  after  the  debt  had  been 
contracted,  the  defendant  agreed  with  M.  to  pay  all  the 
outstanding  bills,  as  part  of  the  consideration  of  an  assign- 
ment of  his  contract  to  another  person  ;  but  the  court  dis- 
regarded it,  on  the  ground  that  it  did  not  sustain  the  cause 
of  action  stated  in  the  complaint,  which  was  a  sale  of  the 
lumber  to  the  defendant.  With  respect  to  the  original 
transaction,  the  court  held  that  the  evidence  established, 
"that  the  lumber  was  furnished  to  M.  on  his  application 
and  on  his  credit,"  because  it  showed,  that  "the  lumber 
was  charged  to  M. ,  and  not  to  the  defendant ;  that  the 
moneys  paid  by  the  latter  to  the  plaintiffs  were  paid  by 
the  defendant,  and  accepted  by  the  plaintiffs,  as  a  payment 
on  account  of  a  debt  owing  to  them  by  M.  ;"  and  "that 
there  is  no  evidence  which  authorizes  a  court  or  jury  to 
find  that  no  credit  was  given  to  M.,  but  that  it  was  given 
exclusively  to  Bradshaw  and  with  his  assent." 

§  168.  In  another  case  decided  on  the  same  day,  Flan- 
ders V.  Crolius,  1  Duer,  206,  A.  D.  1852,  the  same  court 
refused  to  set  aside  a  referee's  report  in  favor  of  the 
plaintiff,  as  against  the  weight  of  evidence.  The  action 
was  for  the  balance  due  upon  an  account  for  goods  fur- 
nished to  the  defendant's  brother,  upon  the  defendant's 
saying  that  the  plaintiff  might  deliver  goods  to  his  brother, 
"and  he  himself  would  be  responsible  for  the  amount  of 
all  bills  for  goods  sold  and  delivered."  The  goods  were 
originally  charged  to  the  defendant,  and  the  defendant 
having  heard  from  his  brother  that  the  latter  was  buying 
goods  from  the  plaintiff  in  his  name,  had  only  answered, 
"  Joe,  mind  and  pay  Flanders."  It  was  held  that  this  evi- 
dence justified  the  conclusion  of  the  referee,     that  the 


Art.  IV.]         Collateral  Undertakings.  233 

goods  were  purchased  by,  and  the  credit  was  given  exclus- 
ively to  the  defendant. 

§  169.  The  following  cases  were  decided  in  the  New 
York  Common  Pleas  :  In  Dixon  v.  Frazee,  1  E.  D.  Smith, 
32,  A.  D.  1850,  goods  had  been  delivered  at  different 
times  by  the  plaintiff  to  tlie  defendant's  son,  at  the  request 
of  the  defendant  and  on  his  promise,  made  at  the  time  the 
account  was  opened,  "that  he  would  see  that  the  plaintiff 
was  paid ;"  but  they  were  charged  to  the  son,  or  a  firm  of 
which  he  was  a  member,  and  from  time  to  time  the 
accounts  were  settled  by  notes  of  the  son  or  of  the  firm. 
The  action  was  brought  for  goods  delivered  since  the  last 
settlement  by  note,  but  notes  of  the  son  had  been  taken  on 
account  for  part  of  the  amount.  A  verdict  having  been 
rendered  for  the  plaintiff,  the  court  on  appeal  reversed  the 
judgment;  the  charge  having  been  indefinite,  and  the 
court  holding  that  the  jury  should  have  been  positively 
instructed  to  find  for  the  defendant,  as  the  evidence  sliowed 
clearly  that  the  son  was  liable,  and  that  the  plaintiff  relied 
on  him  for  payment.  On  the  other  hand  in  Briggs  v. 
Emns,  1  E.  D.  Smith,  192,  A.  D.  1851,  the  plaintiff's 
assignors  had  manufactured  certain  furniture  on  the  order 
of  a  third  person,  to  be  paid  for  in  cash,  and  had  made  out 
a  bill  to  him  ;  but,  on  his  requesting  credit,  they  refused  to 
deliver  the  goods  ;  whereupon  the  defendant  took  the  bill, 
requested  them  to  deliver  the  goods,  and  promised  to  pay 
the  bill  in  two  weeks ;  relying  upon  which  promise,  the 
goods  were  delivered  to  the  third  person,  and  charged  to 
the  defendant.  The  court,  holding  that  the  whole  credit 
was  given  to  the  defendant,  affirmed  a  judgment  (of  the 
Marine  Court)  in  favor  of  the  plaintiff,  (e) 

(e)  Woodruff,  J.,  in  delivering  the  opinion  of  the  Court  in  this  case,  said: 
"The  promise  was  in  form  absolute,  and  was  relied  upon  as  such.  Where 
the  promise  in  such  case  was  absolute  in  form  to  pay,  the  court  must,  as 
matter  of  law,  hold  it  to  be  original,  unless  it  further  appears  as  matter  of 
fact  that  it  was  made  and  intended  as  collateral."  "The  bill  "  (in  the  name 
of  the  third  person)  "was  therefore  made,  before  the  contract  was  made 
upon  which  the  plaintiff  relies,  and  proves  nothing  respecting  the  character 
of  that  contract." 

30 


334  Collateral  IJNDERTAKmGS.  [Ch.  vi. 

§  170.  In  Pennell  v.  Pentz,  4  E.  D.  Smith,  639,  A.  D. 
1855,  in  the  same  court,  the  plaintiff's  assignor  was 
applied  to  by  one  B.  to  furnish  stone,  to  enable  B.  to  fulfil 
a  paving  contract  with  the  city  of  New  York,  which  he 
declined  to  do,  unless  B.  would  procure  "guaranty  for 
payment  of  the  amount;"  and  on  the  defendant  being 
applied  to,  he  said  he  would  not  "guaranty"  to  pay, 
unless  B.  assigned  to  him  the  contract.  B.  having 
assigned  the  contract  to  the  defendant,  the  latter  said 
to  the  plaintiflT,  "You  can  now  go  on  and  furnish 
the  materials  for  those  contracts,  and  I  will  pay  you ; 
as  no  other  person  can  draw  the  money  from  the 
corporation  but  me."  The  plaintiff's  assignor  there- 
upon furnished  the  stone,  and  after  he  had  done  so,  he 
made  out  the  bills  to  B.  ;  but  it  appeared  that  this  was 
done  by  the  direction  of  the  defendant,  to  enable  him  to 
secure  certain  commissions.  It  was  held  by  a  majority 
of  the  court  that  the  promise  was  original,  the  entire 
credit  having  been  given  to  the  defendant ;  and  the  bills 
having  been  made  out  to  B.  by  his  direction,  and  for  his 
accommodation  ;  and  a  judgment  for  the  defendant  in  the 
Marine  Court,  was  accordingly  reversed  on  appeal. 

§  171.  In  the  earliest  Massachusetts  case  in  which  the 
doctrine  now  under  consideration  came  in  question,  Perley 
V.  Spring,  12  Massachusetts,  297,  decided  in  1815,  Chief 
Justice  Parker  recognized  the  distinction  suggested  by 
Lord  Mansfield  in  Mawbrey  v.  CunningTiam,  and  after- 
wards repudiated  by  him.  In  deciding  that  the  plaintiff 
was  entitled  to  judgment  upon  a  verdict,  subject  to  the 
opinion  of  the  court,  the  Chief  Justice  distinctly  stated,  as 
one  of  the  grounds  of  the  decision,  that  the  promise  was 
prospective,  to  pay  a  debt  which  might  accrue  in  conse- 
quence of  the  very  promise  which  was  made,  and  which 
did  not  exist  at  the  time  of  the  promise,  and  therefore,  it 
was  not  affected  by  the  statute. 

§  172.  But  in  Tileston  v.  Nettleton,  23  Massachusetts  (6 
Pickering),  609,  decided  in  1828,  the  same  court,  apparently 


Art.  TV.]  Collateral  Undertakings.  235 

with  the  assent  of  the  Chief  Justice,  laid  down  the  correct 
rule.  The  defendant  was  the  commanding  officer  of  a  militia 
company,  and  also  a  member  of  the  committee  of  arrange- 
ments for  a  celebration  of  the  fourth  of  July,  which 
included  a  public  dinner  provided  by  the  plaintiff.  The 
members  of  the  company  partook  of  the  dinner,  as  well  as 
the  other  citizens  present ;  and  while  they  were  eating,  the 
plaintiff  sent  two  persons  around,  to  collect  one  dollar 
from  each  of  those  present,  to  pay  for  his  dinner.  When 
they  were  proceeding  to  collect  the  money  from  the  mem- 
bers of  the  company,  the  defendant  stopped  them,  and 
said  that  they  need  not  call  upon  the  members  of  the  com- 
pany, as  he  would  be  responsible  for  them ;  to  which  the 
plaintiff  assented,  and  no  money  was  collected  from  them. 
The  evidence  was  submitted  to  the  jury  upon  a  proper 
charge ;  and  the  court,  affirming  a  judgment  for  the  defend- 
ant, stated  that  the  members  of  the  company  w^ere  the 
original  debtors,  and  might  have  been  sued  severally  upon 
an  implied  promise ;  and  their  original  liability  proved 
that  the  defendant's  engagement  was  only  collateral. (/) 

§  173.  And  in  Cahill  v.  Bigelow^  35  Massachusetts  (18 
Pickering),  369,  A.  D.  1836,  Chief  Justice  Shaw  said,  that 
Perley  v.  Spring  was  overruled  by  Tileston  v.  Nettleton. 
The  question,  which  arose  on  a  trustee  process,  was 
whether  Hatch,  the  alleged  trustee,  was  liable  to  the 
defendant,  for  board  furnished  by  her  upon  his  credit  to 
his  laborers.  At  the  time  when  she  opened  the  boarding- 
house,  he  had  verbally  agreed  with  her,  and  with  other 
persons,  who  subsequently  furnished  her  with  provisions 
and  supplies,  that  the  latter  should  deliver  the  supplies 
to  her  and  charge  her  therefor,  and  at  the  end  of  each 
quarter  he  would  see  them  paid ;  and  the  demands  against 
him  by  reason  of  this  promise  exceeded  the  amount  of 
the  defendant' s  bills  for  board.   The  court  held,  that  if  the 


(/)  There  was  however,  a  question  in  this  case,  whether  the  members  of 
the  company  had  not  already  become  liable,  when  the  defendant's  promise 
was  made. 


236  CoLLATEEAL  Undeetakings.  [Ch.  VI. 

trustee  chose  to  interpose  the  defence  of  the  statute  of 
frauds,  against  the  demands  in  favor  of  those  who  fur- 
nished the  supplies,  it  would  constitute  a  defence ;  because 
credit  was  given  to  the  defendant,  the  supplies  having 
been  in  the  first  instance  charged  to  her,  and  she  being 
debtor  therefor.  But  it  was  also  held  that  it  was  optional 
with  the  trustee,  whether  he  would  avail  himself  of  the 
protection  of  the  statute ;  and  as  he  chose  not  to  insist 
upon  it,  he  was  discharged  from  the  trustee  process. 

§  174.  The  same  principle  had  been,  however,  distinctly 
recognized  in  the  previous  case  of  Loomis  v.  Newhall,  32 
Massachusetts  (15  Pickering),  159,  A.  D.  1833,  which  was 
not  cited,  either  by  the  counsel  or  the  court,  in  CaMll  v. 
Bigelow.  There  the  action  was  against  an  administrator, 
upon  a  promise  of  his  intestate.  It  appeared  that  the 
son  of  the  intestate,  who  was  about  forty  years  old,  and 
a  man  without  means,  and  of  bad  habits,  had  boarded 
for  several  months  with  the  plaintiff,  who  was  his  uncle 
by  marriage ;  and  that,  after  the  board  had  been  so  fur- 
nished, the  intestate  requested  the  son  to  continue  to 
remain  at  the  plaintiff' s  house,  and  said  to  the  plaintiff, 
"For  what  you  have  already  done,  and  what  you  shall 
do  for  my  son,  I  will  see  you  paid  hereafter  for  your 
services,  expenses,  and  trouble;"  but  the  son  remained 
only  one  day  after  this  promise.  The  next  day  after  the 
promise,  the  intestate  requested  the  plaintiff  to  pay  a  tax 
against  the  son,  promising  to  refund  the  amount,  and  the 
plaintiff  paid  it  accordingly.  The  court  decided  that,  as 
to  the  board  which  had  already  been  furnished,  the  prom- 
ise was  within  the  statute,  there  being  no  evidence  that  it 
was  furnished  at  the  father' s  request ;  but  that  the  prom- 
ise would  not  have  been  within  the  statute,  as  to  the  one 
day's  board  furnished  afterwards,  had  that  been  separable 
from  the  promise  to  pay  for  the  board  previously  fur- 
nished; and  that  the  promise  respecting  the  tax  was 
original,  and  without  the  statute,  {g) 

(g)  The  decision  was  that  the  plaintiff  should  recover  only  the  amount  paid 
for  the  tax,  as  the  pronaise  to  pay  for  the  board  was  held  to  be  void  as  to 
that  furnished  subsequently  as  well  as  previously,  because  it  was  entire,  and 


Art.  IV.]         Collateral  Undertakings.  237 

§  175.  So  in  Hill  v.  Raymond,  85  Massachusetts  (3 
Allen),  540,  A.  D.  1862,  tlie  same  court  decided,  as  matter 
of  law,  that  no  action  could  be  maintained  for  necessaries 
furnished  to  the  defendant's  brother,  (a  dissipated  man,) 
by  the  plaintiff,  upon  a  verbal  promise  in  these  words :  "  I 
don't  want  my  brotlier  to  go  ragged  or  hungry;  for  any 
necessaries  of  life  you  may  furnish  him,  I  will  see  you 
paid:"  it  appearing  by  the  testimony  in  behalf  of  the 
plaintiff,  that  the  plaintiff  held  the  brother  responsible  for 
the  bill  and  presented  it  to  him,  and  took  from  him  an 
order  upon  the  defendant,  which  the  latter  refused  to 
accept.  Notwithstanding  that  the  plaintiff,  (who  was 
sworn  in  his  own  behalf,)  testified  that  he  did  not  receive 
the  order  in  payment  of  the  bill,  it  was  held  at  the  trial, 
that  the  action  was  not  maintainable  as  matter  of  law  ;  and 
an  exception  to  this  decision  was  overruled,  the  court 
holding  that  "the  defendant's  promise  was  clearly  collat- 
eral. "(7i) 

§  176.  In  Swift  V.  Pierce,  95  Massachusetts  (13  Allen), 
136,  decided  A.  D.  1866,  the  action  was  to  recover  upon 
the  defendants'  verbal  promise  to  pay  for  certain  goods 
delivered  to  one  Hoar  ;  and  it  appeared  that  they  had 
been  charged  to  Hoar  upon  the  plaintiff's  books,  and  that 
the  plaintiff  had  commenced  an  action  for  the  value  of  the 


within  the  statute  as  to  a  part  of  it;  but  the  court  subsequently  granted  a 
new  trial,  or^  the  suggestion  that  the  previous  board  was  furnished  as  a  matter 
of  charity.  However,  in  Rand  v.  Mather,  65  Massachusetts  (11  Gushing),  1 
A.  D.  1853,  the  court  overruled  so  much  of  the  decision  in  Loorais  v.  New- 
hall,  as  holds  that  a  contract  void  in  part  under  the  statute  of  frauds  is 
necessarily  void  in  toto.  There  the  defendant  had  agreed  to  pay  for  the 
work  previously  done,  and  the  work  to  be  done,  to  complete  a  contract 
between  the  plaintiflf  and  a  third  person,  and  it  was  decided  that  he  might 
recover  for  work  done  after  the  promise,  but  not  for  that  done  previously. 
The  case  is  cited  again  hereafter. 

(/i)  The  report  does  not  state  in  what  manner,  if  any,  beyond  presenting 
the  bill,  it  appeared  that  the  plaintiff  held  the  person  to  whom  the  supplies 
were  furnished,  responsible  for  the  bill;  but  the  fact  is  so  stated  in  general 
terms  in  the  syllabus  and  in  the  opinion. 


238  CoLLATEEAL  Undeetakikgs.  [Ch.  VI. 

goods  against  Hoar,  in  which  he  had  summoned  the  pres- 
ent defendants  as  trustees ;  but  the  defendants  had  been 
discharged  in  the  trustee  proceeding,  and  the  plaintiff  had 
thereupon  discontinued  the  action  against  Hoar.  It  was 
held  that  the  jury  was  entitled  to  judge  upon  these  facts, 
whether  the  credit  was  given  to  the  defendants  or  to  Hoar, 
and  a  verdict  for  the  plaintiff  upon  a  charge  to  that  effect 
would  not  be  disturbed ;  but  a  new  trial  was  granted 
because,  although  the  judge  charged  the  jury  that  if  the 
plaintiff  gave  credit  to  Hoar  alone,  the  defendants'  prom- 
ise was  collateral,  he  refused  to  charge  that  the  same 
result  would  follow  if  any  credit  was  given  to  Hoar ;  the 
court  holding  that  there  was  some  evidence,  tending  to 
show,  that  the  plaintiff  relied  upon  the  responsibility  of 
both. 

§  177.  So  in  the  case  of  Wallcer  v.  Richards,  41  New 
Hampshire,  388,  A.  D.  1860.  There  the  declaration  con- 
tained several  special  counts,  claiming  to  recover  for  goods 
sold  and  delivered  by  the  plaintiff,  to  one  Davis  and  two 
other  persons,  in  the  emplojrraent  of  the  defendant,  on 
credit,  and  upon  a  promise  of  the  defendant,  to  be  respon- 
sible and  see  him  paid  ;  and  also  a  general  count  for  goods 
sold  and  delivered  to  the  defendant.  It  appeared  that 
the  plaintiff  had  charged  the  goods  to  the  several  persons 
to  whom  they  were  respectively  delivered  ;  but  he  proved 
that  he  had  done  so  at  the  request  of  the  defendant,  in 
order  that  the  latter  might,  from  time  to  time,  see  whether 
they  were  taking  up  their  pay  for  their  labor,  faster  than 
they  were  earning  it.  The  judge  charged  the  jury,  that  if 
the  goods  were  delivered  to  Davis  and  the  others,  at  the  re- 
quest of  the  defendant,  and  upon  his  absolute  promise  to 
pay  for  them  ;  and  if  the  whole  credit  was  given  to  him, 
and  no  credit  was  given  to  the  workmen,  the  plaintiff  was 
entitled  to  recover ;  and  a  motion  to  set  aside  a  verdict  for 
the  plaintiff  upon  exceptions  to  the  charge  was  denied.  Bell, 
C.  J.,  said,  that  the  special  counts  set  forth  that  the  goods 
were  sold  to  Davis  and  the  others  on  credit ;  and  under 
those  counts  they  were  the  debtors,  and  the  contract  of  the 


Art.  IV.]  COLLATEEAL  UNDERTAKINGS.  239 

defendant  was  entirely  collateral,  and  could  be  proved 
only  by  a  writing ;  but  the  declaration  also  contained  a 
count  for  goods  sold  and  delivered  to  the  defendant ;  and 
under  that  count  it  was  proper  to  prove  that  the  sale  was 
made,  and  the  credit  given,  to  the  defendant  alone.  "The 
charges  on  the  books  to  Davis,  etc.,"  continued  the  learned 
Chief  Justice,  "are  competent  evidence,  that  the  sales 
were  made  to  them,  and  upon  their  credit ;  but  they  are 
not  conclusive,  and  are  open  to  explanation.  It  is  for  the 
jury  to  judge,  upon  all  the  evidence,  to  whom  the  credit 
was  given ;  and  whether  the  agreement  of  the  defendant  is 
original  or  collateral." 

§  178.  In  3foses  v.  Norton,  36  Maine,  113,  A.  D.  1853, 
the  mother  of  the  defendants,  being  in  occupation  of  the 
plaintiffs'  house,  under  a  lease  (apparently  verbal),  at  a 
rent  agreed  upon,  and  the  plaintiffs  being  solicitous  about 
their  rent,  the  defendants  verbally  agreed  to  pay  the  rent 
during  the  time  she  should  occupy  the  house ;  under 
which  agreement,  she  was  allowed  to  remain  for  three 
years,  she  paying  part  of  the  rent  and  one  of  the  defendants 
paying  part.  The  action  was  brought  for  the  remainder, 
and  although  counsel  for  the  plaintiffs  insisted  that  the 
entire  credit  was  given  to  the  defendants,  (the  conversation 
amounting  to  a  refusal  to  allow  her  to  remain,  and  to  a 
reletting  to  the  defendants,)  the  court  held  that  the  plaint- 
iffs could  not  recover,  on  the  ground  that  the  mother  was 
liable,  and  could  not  have  successfully  defended  an  action 
for  the  rent ;  and  therefore  the  defendants'  promise  was 
collateral.  To  the  same  effect  is  Blake  v.  Parlin,  22 
Maine,  395,  A.  D.  1843,  although  there  the  verbal  lessee 
was  moving  in,  when  the  collateral  promise  was  insisted 
upon  and  obtained,  as  a  condition  of  his  being  allowed 
to  do  so.  And  in  Walker  v.  McDonald,  5  Minnesota,  455, 
A.  D.  1861,  the  facts  were  almost  identical  with  those  in 
Moses  V.  Norton,  except  that  the  promise  was  to  be 
"responsible"  for  the  rent,  which  was  held  to  be  collat- 
eral, for  the  same  reason. 


240  Collateral  Undertakings.  [Ch.  vi 

"  179.  These  selections  by  no  means  exhaust  the  variety 
of  the  cases  furnished  by  the  American  reports,  illustrating 
the  general  application  of  this  rule.  From  the  nature  of 
the  transactions  to  which  it  applies,  the  variety  is  almost 
endless ;  each  case  presenting  some  differejit  feature,  upon 
which  a  question  arises  respecting  the  correct  application 
of  the  rule.  Frequently  also,  the  same  facts  present 
embarrassing  questions  under  some  of  the  other  rules, 
either  separately  or  in  connection  with  this.  And  we 
refer  the  reader,  who  wishes  to  pursue  his  researches  fur- 
ther, to  the  numerous  additional  authorities  in  the  note ; 
which  maintain,  with  remarkable  uniformity,  the  same 
general  principle ;  although  there  is  occasionally,  as  in 
some  of  the  cases  already  cited,  a  little  difficulty,  and 
perhaps  discrepancy,  in  its  application.(i) 

(i)  Bates  v.  Starr,  6  Alabama,  697;  Faires  v.  Lodanc,  10  id.  50;  Boykin 
V.  Dolilonde,  1  Alabama  Select  Cases,  502 ;  Kurtz  v.  Adams,  12  Arkansas 
(7  English),  174;  Porter  v.  Langhorn,  2  Bibb  (Ky.),  63;  Hanford  v.  Hig- 
gins,  1  Bosvvorth  (New  York),  441 ;  Hall  v.  Wood,  4  Chandler  (Wisconsin), 
36;  Loomis  v.  Smith,  17  Connecticut,  115;  Knox  v.  Nutt,  1  Daly  (New 
York),  213;  Hetfield  v.  Dow,  3  Dutcher  (New  Jersey),  440;  Read  v.  Ladd, 
1  Edmonds  (New  York),  100;  Weyand  v.  Crichfield,  3  Grant  (Pennsylva- 
nia), 113;  Warnick  v.  Grosholz,  id.  234;  Price  u.  Combs,  7  Halsted  (New 
Jersey),  188;  Elder  v.  Warfield,  7  Harris  &  Johnson  (Md.)  391 ;  Booker  v. 
Tally,  2  Humphreys  (Tenn.)  308;  Williams  v.  Corbet,  28  Illinois,  262; 
Nelson  v.  Hardy,  7  Indiana,  364 ;  Billingsley  v.  Dempewolf,  11  Indiana, 
414;  Backus  v.  Clark,  1  Kansas,  303  ;  Ware  v.  Stephenson,  10  Leigh  (Va.), 
155;  Richardson  v.  Richardson,  1  MacMullan  (South  Carolina),  280;  Homan3 
V.  Lambard,  21  Maine,  308;  Doyle  v.  White,  26  Maine,  341;  Ellicott  v. 
Peterson's  Exrs.,  4  Maryland,  476;  Cropper  v.  Pittman,  13  id.  190;  Leland 
V.  Creyon,  1  McCord  (South  Carolina),  100;  Mease  v.  Wagner,  id.  395 ; 
Waggener  v.  Bells,  4  Monroe  (Kentucky),  7 ;  Underbill  v.  Gibson,  2  New 
Hampshire,  352 ;  Proprietors  of  Upper  Locks  v.  Abbott,  14  id.  157  ;  Brown 
V.  George,  17  id.  128;  Landis  v.  Royer,  59  Pennsylvania,  95;  McCaffil  v. 
Radcliff,  3  Robertson  (New  York),  445;  Brady  v.  Sackrider,  1  Sandford 
(New  York),  514;  Darlington  v.  McCunn,  2  E.  D.  Smith,  411;  Hazen  v. 
Bearden,  4  Sneed  (Tennessee),  48 ;  Hoppock  v.  Wilson,  1  Southard  (New 
Jersey).  149;  Scudder  v.  Wade,  id.  249;  Rhodes  v.  Leeds,  3  Stewart  & 
Porter  (Alabama),  212;  Arbuckle  v.  Hawks,  20  Vermont,  538;  Gleason  v. 
Briggs,  28  id.  135  ;  Hodges  v.  Hall;  29  id.  209  ;  Walker  v.  Norton,  id.  226 ; 
Bushee  v.  Allen,  31  id.  613;  Rogers  v.  Kneeland,  13  Wendell  (New  York), 
114  ;  Turton  v.  Burke,  4  Wisconsin,  119.  Some  of  these  cases  will  also  be 
found  in  the  third  article  of  the  ninth  chapter,  where  a  question  very  analo- 
gous to  that  which  is  now  under  examination  will  be  discussed  at  length; 
and  many  of  the  cases  there  cited  are  also  applicable  here. 


Art.  v.]  Collateral  Undertakings.  241 

ARTICLE  V. 

How  far  the  question,  whether  the  promise  was  original  or  collateral,  belongs  to  the  jury. 

§  180.  It  is  very  evident,  that  where  the  language  used, 
by  the  promisor,  was  pertinent  to  the  creation  of  an  abso- 
lute and  direct  undertaking  to  respond  for  the  price,  and 
at  the  same  time  the  conduct  of  the  third  person  was 
consistent  with  his  assumption  of  a  concurrent  liability 
therefor ;  but  there  is  no  evidence  of  an  express  assent  on 
the  part  of  the  promisee,  to  the  third  person's  assumption 
of  liability,  the  question  to  whom  credit  was  given  belongs 
exclusively  to  the  jury,  (a)  So  also,  where  the  testimony 
leaves  it  doubtful  what  was  the  language  used  by  the 
parties,  it  is  the  province  of  the  jury  to  determine,  under 
the  directions  of  the  court  respecting  the  effect  of  particu 
lar  modes  of  expression,  whether  the  promisor  in  fact 
undertook  to  respond  absolutely,  or  only  in  case  the  third 
person  did  not  pay.  Again,  where  there  is  no  question 
what  were  the  words  used,  but  they  are  susceptible  of 
two  meanings,  the  one  importing  an  absolute,  and  the 
other  a  conditional  promise,  the  question  is  necessarily 
referred  to  the  jury,  to  determine  in  what  sense  they  were 
in  fact  used  and  accepted.  And  in  that  respect,  it  is 
believed  that  the  rule  would  be  the  same,  if  the  contract 
between  the  parties  was  proved  by  a  writing,  containing 
words  of  equivocal  meaning,  even  if  no  question  arose 
under  the  statute  of  frauds.  (&) 


(a)  See  ante,  article  ii. 

(6)  The  point  has  sometimes  arisen  in  cases  under  the  statute  of  limita- 
tions, when  the  question  was,  whether  a  writing  of  equivocal  meaning  con- 
tained an  acknowledgment  of  the  debt  or  a  new  promise.  Thus,  in  Lloyd 
V.  Maund,  2  Term  Reports,  760,  A.  D.  1788,  it  was  held,  that  a  general  ruling 
at  the  trial,  that  an  ambiguous  letter  did  not  amount  to  a  new  promise  or 
acknowledgment  was  erroneous,  and  a  nonsuit  was  set  aside,  one  of  the 
judges  saying,  that  "  the  jury  should  have  put  their  construction  upon  it." 
In  Frost  V.  Bengough,  1  Bingham,  266,  A.  D.  1823,  the  question  was,  whether 
a  letter  from  the  defendant,  saying  that  he  "must  arrange  matters"  with  the 
plaintiflF,  was  suflBicient,  and  the  court  held  that  it  was  properly  left  to  the 
jury  to  say  whether  there  were  any  other  matters  to  which  the  letter  referred. 

31 


242  CoLLATEEAL  Undeetakings.  [Ch.  VI. 

§  181.  But  some  of  the  cases  decided  under  the  statute 
of  frauds  have  gone  further ;  and  expressions  will  occa- 
sionally be  found  in  the  books,  leading  to  the  inference, 
that  the  jury  are  entitled  in  all  cases,  to  pass  upon  the 
question,  whether  the  words  used  imported  an  absolute  or 
a  conditional  promise.  Thus  it  was  said  in  one  case,  War- 
nick  V.  Grosholz,  3  Grant  (Pennsylvania),  234,  that 
"where  words  are  written,  the  general  rule  is  that  the 
court  shall  interpret  them ;  but,  when  they  are  merely 
spoken,  their  sense  and  meaning  intended  are  for  the  jury ; 
their  meaning  being  fixed  by  the  jury,  their  legal  eflfect 
and  consequence  are  determined  by  the  court." 

§  182.  This  question  sometimes  becomes  of  vital  impor- 
tance ;  for  the  rights  of  the  parties  may  depend  entirely 
upon  the  construction,  to  be  placed  upon  words,  concerning 
which  the  witnesses  do  not  essentially  differ.  As  will  be 
more  fully  shown  in  the  next  chapter,  there  is  a  disposi- 
tion, especially  in  the  modern  decisions,  to  assign  to  par- 
ticular forms  of  expression,  in  most  common  use  in 
transactions  of  this  kind,  certain  definite  prima  facie 
meanings.  In  the  case  of  WarnicJc  v.  OrosJiolz,  one  of 
those  expressions  was  used,  the  promise  having  been  that 
the  defendant  would  see  the  plaintiffs  paid,  which,  it  is 
said,  upon  very  respectable  authority,  presumptively 
imports  only  that  the  defendant  would  pay,  in  case  the 
third  person  did  not ;  and  it  may  be  that  he  was  defeated 
by  leaving  the  question  to  the  jury,  without  the  produc- 
tion of  any  evidence  on  the  part  of  the  plaintiff",  to  control 
that  prima  facie  meaning  of  his  promise. 

§  183.  It  is  believed  that  the  distinction,  suggested  in 
that  case,  between  written  and  spoken  words,  has  no  sub- 
stantial foundation ;  and  that  when  the  court  can  clearly 

And  in  Dodson  v.  Mackey,  4  Nevile  and  Manning,  327,  A.  D.  1835,  it  was 
held  that  the  judge  at  the  trial  properly  left  it  to  the  jury,  to  say  whether  an 
ambiguous  letter  amounted  to  a  promise  to  pay  the  debt,  and  if  so,  whether 
the  promise  was  conditional  or  absolute.  See  several  other  cases  cited  in 
Angell  on  Limitations,  §  238. 


Art.  v.]  Collateral  Undertakings.  243 

ascertain  from  the  testimony,  what  the  words  really  were, 
the  determination  of  their  meaning  and  the  nature  of  the 
contract  which  they  create,  is  to  be  made  as  a  matter  of 
law.  This  proposition  is  subject,  of  course,  to  the  excep- 
tion already  mentioned,  where  words  of  equivocal  mean- 
ing have  been  used  ;  or,  what  amounts  to  nearly  the  same 
thing,  where  the  law  assigns  to  the  words  "  a  prima  facie 
meaning"  only,  and  there  is  some  evidence  of  their  having 
been  used  in  a  different  sense. 

§  184.  Thus,  in  Robinson  v.  Oilman,  43  New  Hampshire, 
485,  the  court  below,  in  passing  upon  the  validity  of  a 
set-off,  had  ruled,  in  substance,  that  a  conversation,  proved 
to  have  taken  place  between  the  witness  and  the  plaintiff's 
intestate,  did  not  amount  to  a  promise  to  pay  the  debt ; 
and  Bell,  C.  J.,  delivering  the  opinion  of  the  Supreme 
Court,  granting  a  new  trial  for  that  reason,  with  others, 
said:  "The  language  used  does  not  necessarily  import 
that  he  would  settle,  or  cause  the  notes  to  be  settled.  The 
terms  were  loose  and  indefinite ;  and  the  question  really 
was,  whether  the  jury,  weighing  the  evidence  and  the 
circumstances,  could  rightfully  understand  the  language 
to  be  an  engagement  to  cause  the  debt  to  be  paid,  or  to 
pay  it."  "In  many  cases  it  is  not  so  much  the  question 
what  terms  were  used,  as  what  was  intended.  Where  the 
words  are  certain,  it  is  generally  for  the  court  to  construe 
them;  but,  where  the  jury  must  decide  what  was  said, 
they  must  also  judge  what  was  the  meaning  of  the  parties, 
in  the  language  they  are  found  to  have  used.  If  the 
evidence  tends  to  prove  an  engagement  inconsistent  with 
that  alleged,  and  it  is  capable  of  no  interpretation  tliat 
can  be  reconciled  with  it,  the  court  may  pronounce  the 
evidence  incompetent  on  the  ground  of  variance;  but, 
where  the  evidence  admits  of  being  understood  in  a  sense 
which  would  support  the  declaration,  and  the  doubt  is 
whether  it  is  quite  sufficient  to  support  the  writ,  it  seems 
generally  more  advisable  to  leave  the  c[uestion  to  the  jury, 
who  are  supposed  to  be  more  able  to  judge  of  the  weight 
of  testimony,  as  to  the  facts,  than  the  court." 


244  Collateral  Undeetakiis-gs.  [Ch.  vi. 

§  185.  So,  also,  in  Sinclair  v.  Richardson^  12  Vermont, 
33,  the  same  idea  was  very  clearly  stated  in  the  remarks 
of  CoUamer,  J.,  although  they  were  directly  applicable  to 
a  state  of  facts  depending  upon  a  different  rule.  In  dis- 
cussing the  question,  whether  it  belonged  to  the  court  or 
to  the  jury,  to  determine,  if  proof  of  a  certain  conversa- 
tion between  the  parties,  tended  to  show  an  abandonment 
by  the  plaintiff,  of  a  written  contract  between  himself  and 
a  third  person,  and  the  formation  of  a  new  contract 
between  the  plaintiff  and  the  defendant ;  or,  on  the  other 
hand,  merely  a  guaranty  by  the  defendant  of  the  third 
person's  performance  of  the  former  contract,  he  said: 
"If  the  terms  used  on  the  occasion  clearly  imply  that  the 
former  contract  is  to  continue,  and  the  new  one  be  auxil- 
iary thereto,  then  it  is  matter  of  law  that  the  new  con- 
tract must  be  in  writing.  Such  as  the  saying,  '  proceed, 
and  if  he  does  not  pay  you,  I  will.'  But  if  the  terms  be 
uncertain,  equivocal  or  ambiguous,  then  it  must  always 
be  left  to  the  jury,  to  find  whether  in  fact  the  former 
contract  was  to  continue,  or  whether  the  whole  was  aban- 
doned, and  the  new  contract  and  credit  substituted  in  its 
place,  "(c) 

§  186.  The  distinction  arising  in  cases  where  the  testi- 
mony is  conflicting,  is  also  illustrated  by  the  case  of 
Homans  v.  Lambard,  21  Maine,  308,  where  the  defend- 
ant's counsel  contended,  that  the  judge  at  the  trial  erred, 
in  leaving  it  to  the  jury  to  say,  whether  certain  timber,  for 
the  value  of  which  the  action  was  brought,  was  furnished 
bv  the  plaintiff  upon  the  credit  of  the  defendant,  or  of  the 
third  person  ;  insisting  that  certain  words,  proved  to  have 
been  spoken  by  the  defendant,  implied  a  conditional  con- 
tract, and  should  be  so  construed  as  matter  of  law.  But 
Tenney,  J.,  in  his  opinion,  said,  that  although  it  would 
have  been  the  duty  of  the  court  to  construe  a  written 
promise  in  those  words,  there  were  in  this  case  other  con- 
versations  between   the   parties,  and   also   between  the 

('■)  S.'(\  also,  per  Woodruff,  J.,  in  Briggs  v.  Evans,  ante,  §  169,  note. 


Art.  v.]  Collateral  Undertakings.  245 

plaintiff  and  others,  in  tlie  presence  of  the  defendant, 
which  had  a  tendency  "to  manifest  to  the  defendant  the 
views  entertained  by  the  plaintiff  on  the  subject  of  the 
sale  of  the  timber ;"  and  that  other  facts  were  in  evidence, 
which  might  have  had  an  important  influence,  in  satisfy- 
ing the  jury  of  the  true  character  of  the  transaction. 
"It  was,"  he  added,  "for  them  alone  to  judge,  from  the 
evidence,  what  was  said  and  done,  and  then  to  determine 
therefrom  the  intention  of  the  parties.  It  would  have 
been  a  manifest  invasion  of  their  rights,  for  the  court  to 
select  a  partici^lar  portion  of  the  evidence,  which  the  jury 
might,  or  might  not  believe,  and  as  a  matter  of  law, 
inform  them,  that  their  verdict  must  depend  upon  the  con- 
struction which  the  judge  should  give  to  that,  independ- 
ent of  other  facts  in  the  case.  The  meaning  of  the 
parties  was  to  be  gathered  from  all  the  evidence  before 
them." 

§  187.  So,  also,  in  the  recent  case  of  Perkins  v.  Hins- 
dale, 97  Massachusetts,  157,  A.  D.  1867.  The  action  was 
to  recover  for  articles  delivered  to  the  nephew  of  the 
defendants,  who  were  brothers  and  partners.  At  the 
trial,  the  plaintiff  testified  in  substance,  that  there  had 
been  dealings  between  him  and.  the  nephew,  but  the  last 
credit  he  gave  him  was  on  the  16th  of  September,  1865 ; 
that  on  the  25th  of  that  month,  one  of  the  defendants 
applied  to  him  to  give  the  nephew  further  credit,  stating 
various  circumstances,  tending  to  show  that  he  would  be 
safe  in  doing  so ;  but  the  plaintiff  refused,  unless  the 
defendants  "would  become  responsible."  That  thereupon 
the  parties  made  an  oral  contract,  to  the  effect  that  the 
plaintiff  would  deliver  to  the  nephew  such  goods  as  he 
wanted,  and  the  defendants  "would  pay  the  bill;"  that 
the  plaintiff  would  "go  along  with  him"  each  month; 
and  if,  by  the  15th  of  the  next  month,  the  nephew  had 
not  paid  the  monthly  bill,  the  plaintiff  would  notify  the 
defendants,  and  they  would  pay  it.  That  he  delivered  the 
goods,  and  notified  the  defendants  accordingly ;  and  that 
the  credit  was  given  solely  to  the  defendants,  but  the 


246  Collateral  Undeetakings.  [Cli.  yi. 

accounts  were  kept  with  the  nephew  as  before.  Other 
witnesses,  on  the  part  of  the  plaintiff,  testified  that  the 
conversation  was,  in  substance,  that  the  nephew  was  to 
be  "pushed  up"  till  the  16th  of  each  month ;  and  if  he  did 
not  pay  then,  the  defendants  would  pay  the  bill,  or  see  it 
paid.  Evidence  was  introduced  by  the  defendants,  tend-  ^ 
ing  to  disprove  the  testimony  on  the  part  of  the  plaintiff, 
as  to  the  material  points  of  this  conversation ;  but  on 
cross-examination  of  the  defendant,  with  whom  it  took 
place,  he  admitted  sending  a  letter  to  the  plaintiff's 
attorney,  inclosing  a  payment  on  account  of  the  demand, 
and  saying,  "I  hope  to  see  my  responsibility  liquidated 
soon."  Upon  this  evidence,  the  defendants  contended 
that  they  were  entitled  to  a  verdict,  by  direction  of  the 
court ;  but  the  plaintiff  insisted  that  he  had  the  right  to 
go  to  the  jury,  upon  the  question  to  whom  the  credit  was 
given.  The  judge  directed  a  verdict  for  the  defendants, 
which  was  set  aside  on  exceptions.  Hoar,  J.,  delivering 
the  opinion  of  the  court,  said  that  the  evidence  was 
strong  to  show  that  the  contract  was  collateral ;  but  the 
plaintiff,  in  one  part  of  his  testimony,  expressly  stated 
that  the  sole  credit  was  given  to  the  defendants ;  and 
the  letter  "has  some  semblance  of  an  admission  of  an 
original  and  direct  responsibility."  "Considering,  there- 
fore," he  proceeded,  "that  the  evidence  was  chiefly  oral, 
not  absolutely  distinct  in  its  terms,  or  consistent  in  its 
different  parts  ;  and  that  its  effect  depends  partly  upon 
inferences  to  be  drawn  from  it ;  we  think,  on  the  whole, 
that  it  should  have  been  submitted  to  the  jury,  under 
proper  instructions,  to  determine  the  question  what  the 
contract  was,  as  a  question  of  fact,  and  that  the  court 
should  not  have  decided  it." 

§  188.  And  it  would  also  seem,  that  in  all  cases  where 
the  words  are  susceptible  of  more  than  one  meaning,  the 
question  is  not  in  what  sense  the  promisor  intended  to  use 
them,  but  in  what  sense  the  promisee  received  them.  The 
language  having  been  selected  by  the  promisor,  and  being 
pertinent  to  either    species  of   engagement,    should    be 


Alt.  v.]  Collateral  Undertakings.  247 

regarded  as  a  tender  of  either  to  the  promisee  for  his  accept- 
ance. A  very  striking  illustration  of  its  application  in 
this  particular  connection  is  furnished  by  the  decision  of 
the  King's  Bench  in  Oldham  v.  Allen^  A.  D.  1784,  a  case 
mentioned  by  Bayley,  B.,  in  the  course  of  his  opinion  in 
Simpson  v.  Penton,  2  Crompton  and  Meeson,  430  ;((^)  but 
nowhere  reported.  "There,"  said  Bayley,  B.,  "the 
defendant  had  sent  for  a  farrier  to  attend  some  horses, 
and  said  to  the  farrier  'I  will  see  you  paid.'  The  plaintiff 
knew  the  parties  who  were  owners  of  some  of  the  horses, 
and  made  them  debtors ;  but  debited  the  defendant  for 
the  others,  whose  owners  he  did  not  know;  the  court 
held  that  the  promise  was  original  in  respect  of  those 
owners  whose  names  he  did  not  know,  but  in  respect 
of  the  others  whom  he  did  know,  that  it  was  collateral." 
The  same  language  was  construed  in  this  case  to  raise  at 
the  same  time  two  different  contracts  between  the  same 
parties ;  for  no  other  reason  than  because  it  was  pertinent 
to  both  contracts,  and  the  circumstances  of  the  case  showed 
that  the  promisee,  by  the  mere  operation  of  his  own  mind, 
divided  the  subjects  of  the  promise  into  two  classes,  as 
he  had  a  right  to  do  by  the  terms  of  the  promise,  (e) 

(d)  Ante,  §  160. 

(e)  We  append  abstracts  of  two  cases  illustrating  the  principles  discussed 
in  the  text,  although  no  question  arose  in  either,  growing  out  of  the  statute  of 
frauds.  Sproat  v.  Matthews,  1  Term  Reports,  182,  A.  D.  1786.  This  was 
an  action  by  an  indorsee  of  a  bill  of  exchange  against  the  acceptor,  and  the 
question  was  whether  there  had  been  a  valid  acceptance.  The  proof  was, 
that  on  the  24th  of  September,  the  plaintiff's  clerk  presented  the  bill  for 
acceptance,  and  the  defendant  replied  that  the  drawer  had  consigned  a  ship 
and  cargo  to  him  at  London  and  to  another  person  at  Bristol;  but  as  he  could 
not  tell  whether  the  ship  would  arrive  at  London  or  Bristol,  ''he  could  not 
accept  at  that  time;  "  upon  which  the  clerk  left  the  bill,  with  the  understand- 
ing, assented  to  by  the  defendant,  that  if  the  defendant  did  not  accept  it  from 
the  day  when  it  was  presented,  he  should  be  at  liberty  to  note  it  for  non- 
acceptance  as  from. that  time.  On  the  8th  of  October,  the  clerk  called  again 
with  the  plaintifiF;  and  the  defendant  replied,  that  "the  bill  was  a  good  one 
and  that  it  would  be  paid,  even  if  the  ship  were  lost."'  The  clerk  thereupon 
took  the  bill  to  a  notary,  and  had  it  noted  for  non-acceptance,  as  of  the 
24th  of  September.     Afterwards  the  ship  arrived  at  London,  and  the  defend- 


248  Collateral  Undertakings.  [Ch.  vi. 


ARTICLE  VI. 

Materiality  of  entries  in  the  promisee's  looks,  and  of  other  acts  to  which  the  promisor  was  not 

a  party. 

§  189.  One  question  of  frequent  occurrence,  and  which 
has  given  rise  to  some  conflict  of  opinion,  is  whether  the 
promisee  is  entitled  to  introduce  testimony  of  certain  acts, 
to  which  the  promisor  was  not  a  party,  tending  to  show 
that  he  was  regarded  by  the  promisee  as  the  sole  debtor ; 

ant  received  and  disposed  of  the  cargo.  Buller,  J.,  nonsuited  the  plaintiflf, 
and  a  rule  nisi  for  a  new  trial  was  discharged  after  argument.  Willes,  J., 
thought  that  a  new  trial  should  be  granted.  He  said  that  the  defendant 
accepted  the  bill  upon  two  conditions,  namely,  that  the  ship  should  arrive  at 
London,  or  that  she  should  be  lost;  in  either  case,  (she  being  insured,)  the 
defendant  could  have  indemnified  himself  out  of  the  cargo,  but  not  if  she  had 
arrived  at  Bristol;  and  if  there  was  a  doubt  whether  it  was  a  conditional  or 
absolute  acceptance,  or  whether  (if  conditional)  the  plaintiff  had  precluded 
himself  by  his  subsequent  conduct,  the  question  should  have  been  left  to  the 
jury.  Ashurst,  J.,  thought  the  nonsuit  was  correct.  He  agreed  with  his 
brother  Willes,  respecting  the  meaning  of  the  conversations,  as  being  a  con- 
ditional acceptance,  which  the  plaintiff  afterwards  waived;  and  he  said  that 
if  the  parties  at  first  understood  that  the  matter  was  left  unconcluded, 
"the  plaintiff  is  absolutely  bound  by  his  subsequent  act"  in  protesting  the 
bill,  so  there  was  nothing  to  leave  to  the  jury.  Buller,  J.,  said  that  the  court 
was  now  called  upon  to  determine  a  point  of  law ;  which  was  decisive  that 
the  question  ought  not  to  have  been  left  to  the  jury.  That  the  defendant's 
counsel  admitted  the  evidence  to  be  true,  but  insisted  that  upon  that  evidence 
the  defendant  was  not  Uable  in  point  of  law,  so  there  was  nothing  for  the 
jury.  If  he  had  insisted  that  the  witness  was  mistaken,  that  might  have 
been  properly  left  to  the  jury.  He  then  agreed  with  the  other  two  as  to 
the  meaning  of  the  conversations,  and  added :  "  This,  therefore,  was  a  con- 
ditional acceptance;  and  in  these  cases  the  holder  may  choose  whether  he 
will  be  satisfied  with  it  or  not;  but  here  the  plaintiff  has  waived  it  by  pro- 
testing the  bill  for  non-acceptance."  Thruston  v.  Thornton,  55  Massachu- 
setts (I  Gushing),  89,  A.  D.  1848.  The  action  was  to  recover  for  services  as 
a  broker  on  the  sale  of  real  estate ;  and  at  the  trial  the  principal  question 
was,  whether  the  defendant  employed  and  promised  to  pay  the  plaintiff. 
Upon  that  point,  the  evidence  on  the  part  -of  the  plaintiff  related  entirely 
to  a  conversation  between  the  parties;  in  which  the  defendant  expressed  a 
wish  to  sell  the  property,  and  the  plaintiff  inquired  whether  he  would  pay  a 
commission  for  that  purpose ;  to  which  the  defendant  replied,  that  he  would 
pay  a  commission  to  any  person,  who  could  effect  a  sale  upon  his  terms. 


Art.  VI.]  Collateral  Uxdektakixgs.  249 

as,  for  instance,  that  the  promisor,  and  not  the  third 
person,  was  debited  with  the  goods,  money,  or  other  sub- 
ject of  the  contract.  It  will  be  seen  that  much  stress 
has  been  laid  upon  the  debit  entries,  in  several  of  the 
cases,  which  have  been  abstracted  in  the  preceding  pages. 
And  it  is  conceded,  that  wherever  there  is  doubt  to 
whom  the  credit  was  given,  the  fact  that  the  third  person 
was  debited  in  the  promisee's  books,  with  the  price  of  the 
subject  of  the  contract,  raises  a  presumption  that  the 
undertaking  of  the  promisor  to  respond  was  collateral, 
so  strong  that  some  satisfactory  explanation  must  be 
given,  to  prevent  its  becoming  conclusive.  But  it  has 
been  sometimes  supposed  that  the  contrary  rule  would 
not  apply,  when  the  promisor  was  similarly  debited. 

§  190.  Such  a  suggestion  was  made  in  Cutler  v.  Hinton^ 
6  Randolph  (Virginia),  509,  which  will  be  cited  again 

The  defendant's  evidence  was  apparently  confined  to  the  question  of  fact, 
whether  any  such  conversation  took  place.  The  judge  instructed  the  jury, 
that  if  they  should  be  satisfied  that  the  conversation  took  place,  then,  in 
order  to  determine  whether  the  defendant  was  liable  in  this  action,  it  would 
be  necessary  for  them  to  understand  what  constitutes  a  legal  and  binding 
contract.  And  for  that  purpose  he  delivered  to  them  a  short  disquisition  upon 
the  legal  definition  of  a  contract;  and  added  comments  appropriate  to  the 
evidence,  the  substance  of  which  was,  that  when  the  parties  are  face  to  face, 
one  must  then  make  an  offer,  and  the  other  must  then  accept  it;  unless  it 
is  expressly  agreed,  that  the  one  to  whom  the  offer  was  made,  shall  have 
time  to  consider  it.  In  view  of  these  instructions,  they  were  directed  to 
inquire  whether  "the  minds  of  the  parties  met,  and  they  made  a  legal  and 
binding  contract;  or  whether  the  transaction  was,  as  contended  by  the 
defendant,  a  loose  conversation  not  understood  or  intended  by  them  as 
an  agreement."  The  jury  having  found  a  verdict  for  the  defendant,  the 
plaintiff  moved  for  a  new  trial  on  exceptions,  contending  that  there  was  no 
necessity  for  a  formal  acceptance  of  the  defendant's  offer;  and  that  if  the 
plaintiff  acted  in  consequence  of  the  defendant's  offer,  he  was  entitled  to 
recover.  But  the  exceptions  were  overruled,  the  coart  sa5'ing,  "  It  was  for 
the  jury  to  decide  what  was  the  meaning  and  intention  of  the  parties.  The 
conversation  was  loose  and  indefinite,  and  the  jury,  we  think,  might  well 
find  as  they  did,  that  no  contract  was  in  fact  made.  But  however  this  maj' 
be,  it  was  a  question  of  fact  for  the  jury,  and  we  think  they  were  in  no 
respect  misdirected." 
32 


260  Collateral  Undertakings.  [Cli.  vi. 

in  tlie  next  chapter, (a)  where  Carr,  J.,  delivering  the 
opinion  of  the  court,  after  referring  to  the  fact  that  the 
goods  were  originally  charged  to  the  defendant,  and  not 
to  the  third  person,  added:  "It  seems  to  me  that  such 
entries,  made  in  the  books  of  merchants,  are  better  evi- 
dence against  than  for  them.  Where  they  charge  the 
goods  to  the  person  to  whom  they  are  furnished,  it  is 
strong  to  show  that  they  consider  themselves  dealing  with 
him ;  and,  like  the  admissions  of  a  party,  may  be  safely 
taken  against  them ;  but  it  would  be  of  dangerous  tend- 
ency to  say,  that  by  an  entry  made  by  themselves  in  their 
own  books,  they  could  change  the  complexion  of  their 
case,  and  make  that  an  original,  which  would  otherwise 
have  been  a  collateral  promise."  In  that  case,  however, 
the  promise  was  held  by  the  court  to^  be  collateral  by  its 
terms  ;  and  nothing  could  be  more  proper,  than  a  ruling 
that  the  other  party  could  not,  by  any  act  of  his  own, 
change  it  into  an  original  promise. 

§  191.  Precisely  the  same  observation  applies  to  the 
remarks  of  the  court  in  another  case,  which  has  also  been 
cited  as  authority,  against  the  admission  of  evidence  that 
the  goods  were  originally  charged  to  the  promisor ;  that  of 
Kinlocli  V.  Brown,  1  Richardson  (South  Carolina),  223.  (&) 
There,  also,  the  promise  was  held  to  be  collateral  by  its 
terms  ;  and  after  saying  that  the  onl}^  evidence  given,  was 
that  the  defendant  had  promised  to  guaranty  the  payment 
of  a  debt  contracted  by  one  H.,  the  court  added  :  "This, 
however,  it  is  said,  is  not  the  sense  in  which  the  plaintiffs 
understood  it,  and  in  support  of  it,  their  entries  are 
appealed  to ;  but,  it  must  be  remembered,  that  the  entries 
are  evidence  of  nothing,  save  the  fact  of  the  delivery  of 
the  specified  articles  and  their  prices.  On  whose  credit, 
where  the  person's  liability  is  in  question,  they  were 
delivered,  must  appear  aliunde.  The  testimony  of  H,  is, 
that  he  explained  to  Mr.  Kinloch  that  the  defendant  was 

(a)  Section  203. 

(b)  Cited  also  in  chapter  vii;  see  §  199. 


Art.  VI.]  Collateral  Undertakings.  261 

to  be  security,  and  see  him  paid.  This  is  enough  for  that 
view  of  the  case ;  but  if  Brown' s  promise  was  only  collat- 
eral, and  the  plaintiffs  thought  proper  to  consider  it  as 
original,  that  will  not  help  them.  The  defendant's  liabil- 
ity is  to  be  tested  by  his  undertaking.  This  is  stated 
again  and  again  by  H.  to  be  that  'if  he  (H.)  did  not  pay 
the  amount  to  the  plaintffs,  Brown  would  have  it  to  pay.'  " 

§  192.  These  cases  therefore  prove  nothing,  except  that 
where  a  promise  is  collateral  by  its  terms,  the  promisee 
cannot  change  it  into  an  original  promise,  by  proof  that 
he  received  it  as  original ;  a  proposition  which  admits  of 
no  question ;  and,  in  truth,  it  is  fairly  deducible  from  the 
remarks  of  the  court  in  Kinloch  v.  Broion,  that  the 
plaintiff's  entries  would  be  competent  evidence  of  his 
understanding  of  the  transaction,  whenever  that  was 
material  to  the  issue.  But  there  is  another  criticism  to 
be  made  upon  the  remarks  quoted  from  the  South  Caro- 
lina case,  which  is,  to  some  extent,  applicable  also  to  the 
Virginia  case.  In  the  former  case  certainly,  and  probably 
also  in  the  latter,  they  apply,  not  to  a  general  and  common- 
law  rule  of  evidence,  but  to  a  local  rule,  established  by 
statute  and  custom  in  several  states,  including  South 
Carolina  and  Virginia  ;  whereby  a  plaintiff  is  allowed  to 
give  in  evidence  entries  in  his  books,  accompanied  by  his 
suppletory  oath,  to  prove  the  items  of  an  account  upon 
which  an  action  is  brought,  (c) 


(c)  Mr.  Browne,  in  his  Treatise  on  the  Statute  of  Frauds,  §  198,  says,  that 
"though  the  debiting  of  the  third  party  on  the  plaintiff's  books,  or  the  pre- 
sentation of  the  account  to  him,  is  evidence  against  the  plaintiff,  to  phow  that 
he  gave  credit  to  the  third  party,  so  as  to  render  a  writing  necessary  to  hold 
the  defendant;  his  debiting  of,  or  presenting  the  account  to  the  defendant, 
is  not  evidence /or  him  to  show  that  he  trusted  the  defendant  only,  while,  in 
fact,  the  poods  were  delivered,  or  the  services  rendered  to  the  tliird  party." 
The  authorities  cited  are  Cutler  v.  Hinton,  and  Kiuloch  v.  Brown,  which  are 
criticised  in  the  text;  and  also  Noyes  v.  Humphreys,  11  Grattan  (Virginia), 
G36;  Walker  v.  Richards,  41  New  Hampshire,  388;  and  Scuddcr  v.  Wade,  1 
Southard  (New  Jersey),  249.  Of  the  last  three  cases,  Noyes  v.  Himiphreys 
and  Walker  v.  Richards,  are  on  the  first  branch  of  the  proposition  (tlie  latter 


252  Collateral  Undertakings.  [Ch.  vi. 

§  193.  We  have  already  given  our  reasons  for  the  opin- 
ion, that  in  all  cases  where  the  words  used  are  such,  as  to 


is  abstracted,  ante,  §  177) ;  and  with  respect  to  the  second  branch,  we  think 
that  Scudderv.  Wade  holds  the  other  way;  for  in  both  the  opinions  dehvered 
in  the  case,  the  charges  in  the  plaintiffs  books  against  the  defendant,  were 
regarded  as  proper  evidence  in  his  favor,  that  the  credit  was  given  to  the 
defendant,  and  not  to  the  third  person.  It  is  true  that  the  reporter  appends 
a  note,  saying  that  the  judgment  was  ultimately  reversed  by  the  Court  of 
Appeals,  but  he  was  not  able  to  ascertain  on  what  ground  the  reversal  pro- 
ceeded ;  it  could  not  have  been  on  account  of  the  admission  of  the  books, 
as  the  report  states  that  they  were  admitted  without  objection.  In  Keith  v. 
Kibbe,  64  Massachusetts  (10  Gushing),  35,  the  plaintiffs  sued  for  the  value 
of  timber  used  in  a  dwelling-house,  which  was  in  the  course  of  erection  for 
the  defendant;  and  the  defendant  admitted  the  delivery,  (to  whom  the  report 
does  not  state,  probably  only  on  the  premises,)  but  contended  that  it  was 
sold  to  one  Rollins,  the  contractor  for  the  erection  of  the  dwelling.  The 
plaintiffs  were  allowed  to  prove  by  their  clerk,  entries  in  their  books,  made 
by  him,  charging  the  timber  to  the  defendant;  notwithstanding  the  lattcr's 
objection  that  it  was  "  incompetent  evidence  of  the  fact  to  whom  credit  was 
originally  given ; "  and  the  plaintiffs  having  had  a  verdict,  the  judgment  was 
reversed,  on  an  exception  taken  to  the  admission  of  the  evidence.  The  court 
said  that  it  was  a  mere  question  as  to  the  party,  who  was  the  debtor  to 
the  plaintiffs  for  the  articles;  and  that  in  the  case  upon  which  the  plaintiffs 
relied.  Ball  v.  Gates,  53  Massachusetts  (12  Metcalf),  491,  there  was  other 
evidence  rehed  upon  to  charge  the  defendant  as  debtor;  and  the  book  was 
•ffered  to  show  merely  the  items  delivered.  The  case,  it  will  be  seen,  turned 
entirely  upon  the  competency  of  entries  of  that  character,  under  local  usage 
or  special  statute  relating  to  that  kind  of  evidence;  no  question  having  arisen 
under  the  statute  of  frauds,  doubtless,  because  no  express  promise  was  made 
either  by  the  defendant  or  by  Rollins,  it  being  conceded  that  if  one  was 
liable,  the  other  was  not.  It  appears  to  the  writer,  that  this  and  the  numer- 
ous kindred  cases  relating  to  the  general  competency  of  entries  of  that 
character,  witn  or  witnout  the  plaintiff's  suppletory  oath,  have  no  appli- 
cation to  the  question  which  we  are  now  considering;  for  the  reason  that  in 
those  cases  the  issue  is,  whether  the  defendant  did  make  the  promise,  while 
in  cases  under  the  statute  the  issue  is,  in  what  manner  did  the  plaintiff  accept 
it.  But  the  reader  who  wishes  to  examine  the  decisions  referred  to,  will 
find  them  collected,  and  very  ably  commented  upon,  in  Messrs.  Wallace's  note 
to  Price  v.  The  Earl  of  Torrington,  1  Smith's  Leading  Cases,  390,  page  515  and 
onward  of  the  sixth  American  edition  ;  where,  with  other  interesting  matter, 
it  is  shown  that  legal  lexicography  is  sufficiently  elastic  to  include,  among  the 
definitions  of  the  word  book,  a  shingle,  a  notched  stick,  a  bit  of  paper  two 
inahes  square,  and  a  closet  door. 


Art.  VI.]  Collateral  Undertakings.  263 

be  consistent  with  either  an  original  or  a  collateral  engage- 
ment, the  question  of  fact  is  simply  in  what  sense  the  prom- 
isee accepted  them  ;  and  that  the  determination  of  this  issue 
necessarily  involves  an  inquiry  into  the  operation  of  his 
mind.(<rZ)  If  this  opinion  is  correct,  it  is  difficult  to  see 
upon  what  ground  his  act,  of  so  unequivocal  a  character 
as  a  cotemporaneous  entry  in  his  books  to  the  debit  of  the 
promisor,  can  be  excluded  as  part  of  the  res  gesta.  With 
respect  to  the  presentation  of  a  bill  to  the  promisor,  or 
other  similar  act  occurring  after  the  completion  of  the 
transaction,  there  may  be  more  room  for  doubt  whether 
the  evidence  is  admissible.  Standing  alone,  it  would  per- 
haps be  incompetent ;  but  cases  may  readily  be  suggested, 
where  it  would  be  so  connected  with  the  other  facts  of  the 
case,  as  to  requii-e  the  application  of  the  principle  u  pon 
which  cotemporaneous  entries  should  be  admissible.  Evi- 
dence of  this  kind,  on  the  part  of  the  promisee,  or  his 
representative,  has  been  received  and  regarded  as  material 
in  some  of  the  cases  cited  in  the  preceding  pages ;  (e) 
although  in  Darnell  v.  Tratt,  and  Hams  v.  Storry,{f) 
it  appears  to  have  been  produced,  merely  for  the  purpose 
of  laying  the  foundation,  for  proof  of  an  admission  of 
liability  by  the  defendant. 

(d)  See  ante,  §§  148,  149. 

(  e)  See  ante,  §§  158,  159,  IGO,  168,  169;  and  see  also  Booker  v.  Tally,  2 
Humphreys,  308;  McCaffil  v.  Radcliff,  3  Robertson,  445;  Scudder  v.  Wade, 
1  Southard,  249 ;  and  Hodges  v.  Hall,  29  Vermont,  209. 

(/)  §§  158,  159. 


CHAPTER    SEVENTH. 

THE  SAME  SUBJECT  CONTINUED. — APPLICATION  OF  THE 
THIKD  EULE  TO  CASES,  WHERE  THE  PROMISE  IN  TERMS 
CONTEMPLATED  A  RESORT  BY  THE  PROMISEE  TO  THE 
THIRD   PERSON. 


§  194.  It  will  be  apparent,  from  what  has  gone  before, 
that  the  question  to  whom  credit  was  given  will  rarely  arise, 
except  when  the  words  used  by  the  promisor,  imported  a 
direct  and  absolute  engagement  to  respond  for  the  consid- 
eration. For  the  theory  that  the  third  person  was,  in  the 
eye  of  the  law,  merely  the  conduit  through  which  the  con- 
sideration passed  from  the  promisee  to  the  promisor,  is 
generally  inconsistent  with  the  making  or  acceptance  of  a 
promise,  in  terms  conditional  upon  his  default  in  paying 
the  price.  StUl  this  rule  admits  of  some  exceptions ; 
which,  together  with  the  principles  by  which  the  absolute 
or  conditional  character  of  the  promise  is  determined,  will 
be  considered  in  this  chapter. 

AETICLE  I. 

Where  the  promisor's  liability  was  expressly  made  conditional  upon  non-payment  by  the  third 

person. 

(1  )   Where  the  promise  was  to  pay  if  the  third  person  did  not. 

§  195.  All  the  cases  agree,  that  where  the  third  person  was 
a  party  to  the  transaction,  and  the  promisor  requested  the 
promisee  to  let  him  have  the  property,  or  other  considera- 
tion of  the  promise,  and  added,  "I  will  pay,  if  he  does 
not,"  or  words  to  that  effect,  the  promise  is  within  the 
statute,  as  matter  of  law.  It  was  so  held  in  Birkmyr  v. 
Darnell^  and  again  in  Jones  v.  Cooper,  explained  and 
affirmed,  in  that  particular,  by  Peclcham  v.  Faria  ;{a)  and 

(a)  Ante,  §§  143,  144,  145. 


Art.  I.]  Collateral  Undertakings.  266 

these  cases  have  so  settled  the  rule,  that  but  few  others  are 
found,  where  the  point  has  been  presented  for  adjudica- 
tion ;  althougli  those  words  are  frequently  referred  to  in 
text  books  and  judicial  opinions,  as  affording  a  perfect 
example  of  a  conditional  promise.  One  of  the  more 
recent  cases,  where  they  were  indirectly  in  question,  is 
Conolly  V.  KettleioeU,  1  Gill  (Maryland),  260,  A.  D.  1843. 
There  the  action  was  to  recover  for  goods  delivered  to  one 
Sterling.  After  the  goods  were  selected,  and  debited  to 
Sterling  in  the  day-book,  the  plaintiffs  refused  to  deliver 
them  till  the  defendant  promised  to  pay  for  them,  if  Ster- 
ling did  not ;  when  they  were  delivered,  and  a  memoran- 
dum added  to  the  debit  charge,  that  it  was  "secured"  by 
the  defendant.  The  plaintiff  having  had  a  verdict  and 
judgment,  it  was  held  on  appeal,  that  the  promise  was 
collateral  as  matter  of  law ;  and  the  judgment  was 
reversed  in  the  Court  of  Appeals.  And  a  like  ruling  was 
made  in  Steele  v.  Towle,  28  Vermont,  771,  A.  D.  1856, 
respecting  the  words,  "he  is  good ;  if  not.  I  am,"  spoken 
by  the  defendant  while  negotiating,  in  behalf  of  a  third 
person,  with  the  plaintiff.  (&) 

§  196.  But  while  a  promise,  framed  in  these  or  equivalent 
words,  imports  in  law  a  conditional  undertaking,  the  pre- 
sumption may  be  overcome  by  the  circumstances  of  the 
case.  It  is  believed,  however,  that  these  must  be  of  such 
a  character  as  to  show  that  the  third  person  was  not  a 
party  to  the  contract.  This  subject  will  be  more  fully 
considered,  together  with  some  other  descriptions  of  con- 
ditional contracts,  which  are  nevertheless  regarded  as 
original,  in  a  subsequent  portion  of  this  chapter. 

(2  )  Where  the  promise  ivas  to  see  the  promisee  paid,  or  words  to  that  effect. 

§  197.  The  form  of  conditional  promise  which  occurs  in 
the  cases,  more  frequently  than  any  other,  is  where  the 
promisor  requests  the  promisee  to  deliver  to  the  third  per- 

(h)  See  also  Blank  v.  Dreher,  25  Illinois,  331 ;  Stone  v.  Walker,  79  Mas- 
sachusetts (13  Gray),  613  ;  Dufolt  v.  Gorman,  1  Minnesota,  301 ;  Skinner  v. 
Conant,  2  Vermont,  453  ;  Sinclair  v.  Richardson,  12  Vermont,  33. 


256  COLLATEEAL   UNDERTAKINGS.  [Ch.  VII. 

son  the  subject  of  the  contract,  and  adds,  "I  will  see  yon 
paid,"  or  "  I  will  see  the  bill  paid,"  or  similar  words. 
The  course  of  decisions  respecting  this  form  of  expression 
has  been  very  singular,  for  in  the  earliest  case  of  all,  Wat- 
Tcins  V.  Perkins, {c)  A.  D.  1697,  Holt,  C.  J.,  puts  this  pre- 
cise formula  as  the  best  illustration  of  a  promise  collateral 
as  matter  of  law,  whereas  in  the  next  case,  Birlcmyr  v. 
Darnell,{d)  it  is  used  as  containing  the  words  in  which  an 
original  promise  can  be  most  fitly  couched.  Lord  Mans- 
field also  regarded  the  expression  as  indicating  an  original 
promise,  as  appears  from  his  ruling  in  the  next  succeed- 
ing case,  Mawhrey  v.  Cunningham,  as  explained  in  Jones 
Y.  Cooper, {e)  Again,  in  Tliomjpson  v.  Bond,{f)  Lord 
Ellenborough,  coinciding  with  Holt,  said  that  such  a 
promise  is  collateral  as  matter  of  law.  In  several  other 
cases,  English  and  American,  among  them  Keate  v.  Tem- 
ple and  Matson  v.  Wharam,{g)  the  same  expression, 
either  alone,  or  in  connection  with  others,  has  been 
treated  sometimes  as  importing  an  original,  and  some- 
times a  collateral  engagement,  according  to  the  other  cir- 
cumstances in  evidence ;  without  adverting  to  the  ques- 
tion, in  which  capacity  the  words  prima  facie  import 
that  the  engagement  was  made.  But  in  modern  times, 
especially  in  the  United  States,  the  rule  seems  to  be  well 
established  that  these  words,  or  their  equivalents,  imply 
a  collateral  promise  as  matter  of  law ;  and  in  the  absence 
of  proof  of  a  contrary  intent,  they  will  not  suffice  to 
maintain  an  action.  Thus  in  Thwaits  v.  Curl,  6  B.  Mon- 
roe (Kentucky),  472,  A.  D.  1846,  a  case,  however,  which 
involved  the  validity  of  a  verbal  promise  to  pay  another' s 
precedent  debt,  Ewing,  C.  J.,  delivering  the  opinion  of  the 
court,  said,  "  The  language  that  she  would  see  him  paid, 
shows  that  the  promise  was  a  collateral  undertaking  to 
answer  for  or  see  paid  the  debt  of  another  ;  not  an  inde- 
pendent promise.     To  see  paid  imports  an  undertaking  or 


(c)  Antr    §  142.  {d)  Ante,  §  143.  (e)  Ante,  §  144. 

(/)  Ante,  §  157.  {g)  Ante,  §§  155,  14G. 


Art.  I.]  Collateral  Undertakings.  267 

guaranty  for  another's  debt."  So  in  Elders.  Warfield, 
7  Harris  and  Johnson  (Maryland),  391,  A.  D.  1826, 
Buchanan,  C.  J.,  remarked  that  this  expression  imports 
a  Collateral  promise. 

§  198.  The  rule  that  these  words  imply  prima  facie  a  col- 
lateral undertaking,  was  embodied  in  the  decision  of  Crop- 
per V.  Pittman,  13  Maryland,  190,  A.  D.  1858.  There  the  ac- 
tion was  to  recover  for  goods  furnished  to  John  S.  Cropper, 
the  brother  of  the  defendant  and  appellant ;  and  the  proof 
at  the  trial  was,  that  the  defendant  introduced  his  brother  to 
the  plaintiff' s  salesman,  as  a  person  who  wished  to  pur- 
chase a  bill  of  goods,  and  said  "that  he"  (the  defendant) 
"  would  see  the  bill  paid."  After  this  conversation,  John 
S.  Cropper  selected  some  goods ;  but  before  they  were 
delivered,  the  salesman  called  again  upon  the  defendant, 
and  asked  if  he  would  accept  a  draft  for  the  amount,  which 
the  defendant  declined  to  do ;  but  he  said  that  he  would  see 
the  bill  paid,  as  he  expected  some  consignments  from  his 
brother  "and  he  would  appropriate  the  amount  to  pay 
the  bill ;  he  said  he  would  see  the  bill  paid,  if  John  S. 
Cropper  purchased  the  goods  of  the  plaintiff."  The  goods 
were  thereupon  delivered,  and  the  report  says  that  ' '  at 
subsequent  periods  the  defendant  gave  witness  orders  for 
goods  for  his  brother  John  S.  Cropper ;  that  the  goods 
were  all  charged  upon  the  plaintiff's  books  to  John  S. 
Cropper."  The  judge  instructed  the  jury,  that  if  the 
goods  were  sold  on  the  credit  of  the  defendant,  the  plaint- 
iff was  entitled  to  recover  ;  and  he  refused  to  instruct  them, 
as  requested  by  the  defendant,  that  if  the  agreement  was 
to  pay  a  debt  contracted  by  John  S.  Cropper,  if  he  did 
not,  the  plaintiff  was  not  entitled  to  recover.  The  plaintiff 
had  a  verdict,  and  the  judgment  thereon  was  reversed  by 
the  Court  of  Appeals,  Tuck,  J.,  delivering  the  opinion. 
He  said  that  John  S.  Cropper  was  liable  for  the  goods, 
and  the  plaintiff  considered  him  as  a  debtor  for  them,  and 
that  sometimes  there  may  be  a  question  to  whom  tlie  credit 
was  given,  depending  upon  inferences  to  be  drawn  from 
all  the  facts  and  circumstances,  but  when  the  evidence  is 
33 


258  Collateral  Undertakings.  [Ch.  vii. 

not  legally  sufficient  to  charge  the  defendant,  tlie  parties 
should  not  be  sent  to  a  jury.  The  learned  judge  added, 
that,  in  this  case,  there  was  no  error  in  the  refusal  of  the 
defendant' s  prayer,  because  it  assumed  that  the  debt  was 
contracted  by  John  S.  Cropper ;  when  the  question  was, 
whether  it  was  the  defendant's  original  debt.  But  he 
thought  that  the  instruction  actually  given  was  erroneous, 
for  certain  reasons  assigned  by  him,  and  chiefly,  because 
it  was  left  to  the  jury  to  decide,  whether  the  goods  were 
sold  upon  the  credit  of  the  defendant,  when  the  evidence 
was  not  legally  sufficient  to  warrant  such  a  finding.  He 
proceeded:  "We  do  not  say  that  in  every  case,  where 
the  words  '  I  will  see  the  bill  paid '  are  used,  they  neces- 
sarily import  a  collateral  undertaking,  and  that  in  no 
such  case  could  the  plaintiff  recover  ;  but  that  when  they 
stand  alone,  as  here,  they  must  be  so  interpreted.  If 
accompanied  by  other  words  or  facts,  sufficient  to  authorize 
a  jury  to  find  from  all  the  evidence,  that  credit  was  given  to 
the  party  using  them,  a  different  result  might  follow." 

§  199.  So  in  Kinloch  v.  Brown,  1  Richardson  (South 
Carolina),  223,  A.  D.  1845,  the  defendant  had  authorized 
one  Hieronymus,  "  to  go  to  the  plaintiffs  to  purchase  hay 
and  corn,"  or,  as  the  witness  at  another  time  expressed 
himself,  had  "proffered  his  services  as  security;"  and  H. 
had  purchased  the  hay  and  corn  accordingly,  saying 
to  one  of  the  plaintiffs  at  the  time,  that  the  defendant 
"was  to  be  security,  and  would  see  him  paid."  It 
appeared  that  the  plaintiffs  charged  the  goods  to  the 
defendant,  and  that  the  defendant  knew  that  H.'s  credit 
with  the  plaintiffs  had  been  stopped.  Nevertheless  the 
plaintiffs  were  nonsuited,  and  on  appeal  the  judgment 
was  affirmed,  the  Court  of  Appeals  holding  that  the  con- 
tract, as  entered  into  between  the  plaintiffs  and  H.  as  the 
defendant' s  agent,  was  conditional  by  its  terms,  the  mean- 
ing of  the  words  used  by  H.  being  in  substance,  that  the 
defendant  would  pay  if  H.  did  not.  {li) 

{h)  An  extract,  from  the  opinion  in  this' case  will  be  found  in  §  191,  ante. 
It  is  to  be  remarked,  however,  that  here  the  Word   "security"  was  used, 


Art.  I.]  Collateral  Undertakings.  259 

§  200.  Tlie  promise  proved  in  the  following  case  has  pre- 
cisely the  same  meaning,  with  respect  to  the  performance  of 
some  act  other  than  the  payment  of  money,  as  an  undertak- 
ing to  see  the  promisee  paid,  where  the  payment  of  money  is 

BO  that  the  case  is  not  as  direct  an  authority  as  Cropper  v.  Pittman,  for  hold- 
ing that  a  promise  to  see  the  promisee  paid  is  necessarily  collateral.  Of  the 
efiect  of  the  word  "security,"  or  its  equivalent,  "guaranty,"  it  may  be  said 
that  the  use  of  either  will  generally  be  sufficient  of  itself  to  stamp  the  con- 
tract as  collateral.  Everett  v.  Morrison,  Breese  (Illinois),  49.  See  also, 
Allen  V.  ScarfiF,  1  Hilton  (N.  Y.),  209;  Bronson  v.  Stroud,  2  McMullan 
(South  Carolina),  372,  post  §  211.  See  also,  Conolly  v.  Kettlewell,  1  Gill. 
260,  ante  §  195;  as  to  the  effect  of  the  entry  "  secured  by  "  in  the  books  of 
the  promisee,  as  descriptive  of  the  contract  of  the  promissor.  It  was 
held  in  Norris  v.  Spencer,  18  Maine,  324,  that  the  word  "  security  "  was 
not  necessarily  equivalent  to  "  guaranty,"  but,  on  the  contrary,  was 
equivalent  to  "surety,"  unless  a  contrary  intent  appeared;  so  that  a  joint 
action  could  be  mairftained,  where  a  contract  in  writing  had  been 
executed  by  one  of  the  defendants,  whereby  he  undertook  as  "security' 
for  the  fulfilment  by  the  other  of  another  contract,  signed  by  the 
latter,  and.  written  on  the  same  paper.  This  decision  was  made  upon  the 
authority  of  Hunt  v.  Adams,  5  Massachusetts,  358,  where  it  Avas  held, 
that  an  instrument  signed  by  the  defendant  alone,  and  appended  to  another 
person's  non-negotiable  note,  whereby  the  defendant  undertook  as  surety  for 
the  payment  of  the  note,  was  not  a  promise  to  answer  for  the  debt  of  another, 
within  the  statute  of  frauds,  because  both  were  joint  and  several  promisors. 
But  a  different  rule  was  laid  down  in  Gould  v.  Moring,  28  Barbour,  444, 
decided  by  the  New  York  Supreme  Court  in  1858.  There  the  instrument, 
upon  which  the  action  was  brought,  consisted  of  a  short  tenant's  agreement, 
of  the  form  in  common  use,  executed  by  one  Heilberth  to  one  Andrews,  the 
plaintiff's  assignor,  whereby  Heilberth  certified  that  he  had  leased  from 
Andrews  a  certain  office  at  a  specified  rent,  payable  as  therein  mentioned, 
and  under  the  signature  of  Heilberth  to  that  paper,  the  defendant  had  Avrit- 
ten  "security,  H.  E.  Moring."  The  plaintiff  recovered  at  the  trial,  but  the 
judgment  was  reversed  upon  appeal,  and  a  new  trial  ordered,  Davies  J.  say- 
ing: "In  this  case,  the  defendant  undertakes,  as  security  for  the  tenant,  that 
is,  that  he  will  pay  if  the  tenant  does  not.  A  joint  action  will  not  lie  against 
them  both;  they  are  not  the  same,  but  different  contracts."  Hence,  as  the 
defendant's  contract,  comprised  as  it  was  in  the  single  word  "security,"  did 
not  express  the  consideration,  as  the  New  York  statute  then  required,  it  was 
held  to  be  void.  But  when  no  person  is  bound  except  the  promi.sor,  the 
words  "secure"  and  " security  "  will  be  regarded  as  equivalent  to  "pay" 
and  "  payment."  Thus  in  Adams  v.  Hill,  15  Maine,  215,  A.  D.  1839,  where  the 
action   was  on  a   written  contract  made  by   the  defendants,   agreeing   to 


260  COLLATEEAL   UnDEETAKINGS.  [Ch.  VII. 

in  question.  In  Billing sley  v.  Dempewolf,  11  Indiana, 
414,  A.  D.  1858,  it  appeared  in  evidence  that  one  Allen, 
wishing  to  procure  the  loan  of  a  horse  from  the  plaintiff, 
so  informed  the  defendant  in  the  presence  of  the  plaintiff, 
and  added,  "that  the  plaintiff  wanted  security  for  the 
return  of  the  horse."  The  defendant  answered,  "Any 
agreement  you  and  Billingsley  make  about  the  horse, 
I  will  make  good."  The  plaintiff  thereupon  delivered 
the  horse  to  Allen,  to  be  returned  in  about  three  weeks. 
The  cause  was  tried  by  the  court  without  a  jury,  and 
judgment  was  given  for  the  defendant.  Upon  appeal 
the  Supreme  Court  affirmed  the  judgment ;  holding, 
that  although  there  was  no  conflicting  evidence,  the 
question  was  one  of  fact  to  whom  credit  was  given; 
and  the  decision  did  not  appear  to  be  so  flagrantly 
wrong  that  it  should  be  reversed  upon  the  facts.  The 
opinion  concluded,  however,  as  follows  :  "And  we  think, 
also,  that  the  proper  construction  of  the  terms  of  the 
promise  is,  that  it  was  but  a  collateral  undertaking." 
This  is  manifestly  the  ground  upon  which  the  decision 
should  have  been  exclusively  placed :  it  being  impossi- 


"  secure "  to  the  plaintiflf  payment  for  certain  work,  to  be  done  under 
another  contract  therein  referred  to;  which,  however,  had  not  been  executed 
so  as  to  bind  the  parties  thereto,  it  was  held  that  the  promise  was  original, 
the  court  saying,  "  The  terms  used  are  a  direct  promise  to  pay,  for  such  is  the 
effect  of  an  agreement  to  secure  payments  which  no  other  party  was  bound  to 
make."  And  it  sometimes  happens  that  although  words  unequivocally  descrip- 
tive of  a  collateral  contract  were  used  during  the  negotiations,  the  contract 
itself  was  consummated  by  words  importing  an  absolute  engagement.  Thus 
in  Pennell  v.  Pentz,  4  E  D.  Smith,  639,  ante  §  170,  the  plaintiff  in  terms  applied 
to  the  third  person  for  a  "  guaranty  for  payment;"  and  the  promisor,  on  being 
applied  to,  declined  to  "  guaranty  to  pay  "  unless  the  third  person  assigned  to 
him  the  paving  contract,  to  fulfil  which  the  goods  were  wanted;  thus  clearly 
showing  that  the  parties  contemplated,  in  the  early  stages  of  their  negotiation, 
a  mere  collateral  engagement.  But  nevertheless  the  promise  was  held  to  be 
absolute,  because,  on  the  completion  of  the  transaction  by  the  assignment  of 
the  contract,  the  promisor  said,  "  I  will  pay,  as  no  other  person  can  draw  the 
money,"  which  expression  clearly  showed  that  he  agreed  to  provide  for 
the  payment,  without  any  resort  to  the  third  person. 


Art.  II.]  Collateral  Undertakings.  261 

ble  to  infer  an  original  undertaking  from  tlie  defendant'  b 
language.  (^■) 

ARTICLE  XL 

Where  the  promise  ia  collateral,  beoanse  its  language  implied  that  the  third  person  was  also  to 

become  liable. 

(1  )  Miscellaneous  cases,  depending  upon  the  use  of  particular  words. 

§  201.  There  are  a  very  few  cases,  turning  in  part  upon 
the  etymological  construction  of  the  words  used  by  the 
promisor,  in  describing  the  arrangement  contemplated 
between  the  promisee  and  the  third  person ;  which,  it  is 
held,  render  the  promise  collateral  as  matter  of  law, 
because  they  necessarily  imply,  that  the  person  benefited 
by  the  transaction  was  to  assume  a  liability  for  the  debt. 
In  each  of  those  which  we  have  at  hand,  there  was  also 
some  expression  used  relating  to  the  promisor's  own 
engagement,  which  had  its  weight  in  determining  the  con- 
struction put  upon  the  promise ;  but  as  the  court  dis- 
tinctly held  that  the  construction  of  the  words,  relating  to 
the  third  person' s  engagement,  was  such  as  to  render  the 
promise  necessarily  collateral,  the  cases  seem  to  form  a 
separate  class,  turning  upon  that  distinction. 

§  202.  Thus  in  Skinner  v.  Conant,  2  Vermont,  453,  A. 
D.  1830,  it  appeared  that  one  Andrus  was  working  the 

(i)  Cases  where  a  contract  had  been  previously  entered  into  between  the 
promisee  and  the  third  person,  for  the  performance  of  services,  the  furnish-, 
ing  of  chattels  or  the  like,  by  the  promisee,  in  some  matter  wherein  the 
promisor  was  interested,  for  a  price  to  be  paid  by  the  third  person  ;  and 
the  promisee,  being  unwilling  to  fulfil  his  contract  with  the  third  person, 
was  induced  to  proceed  by  the  promisor's  verbal  undertaking  to  respond ; 
depend  upon  a  principle  so  closely  allied  to  the  first  rule,  that  they  are  fre- 
quently regarded  as  belonging  to  the  class  now  under  consideration.  In 
those  cases  the  promise  is  not  within  the  statute,  if  the  promisee  entirely 
abandoned  his  contract  with  the  third  person  ;  and  the  inquiry  whether  he 
did  so,  raises  generally  many  of  the  same  incidental  questions,  respecting 
the  person  to  whom  credit  was  given,  the  terms  of  the  promise,  &c.,  which 
are  presented  in  this  class  of  cases.  Several  of  those  cases  will  be  found  to 
involve  the  very  question  just  examined;  the  reader  is  therefore  referred  to 
the  third  article  of  the  ninth  chapter,  where  they  are  collected. 


262  Collateral  Undertakings.         [Ch.  vii. 

distillery  of  Skinner  and  Bulkely,  the  defendants  in  the 
court  below,  and  plaintiffs  in  error  in  the  Supreme  Court, 
who  "agreed,  that  in  case  Andrus  would  hire  Conant" 
(the  plaintiff  in  the  court  below)  ' '  to  work  in  said  dis- 
tillery, they  would  see  him  paid ; ' '  that  this  agreement 
was  verbal ;  that  Andrus  did  hire  him,  and  that  he 
worked  the  number  of  days  charged  ;  and  this  action  was 
brought  to  recover  for  his  labor.  The  plaintiff  had  judg- 
ment in  the  court  below,  and  upon  error  the  Supreme 
Court  reversed  the  judgment,  Hutchinson,  J.,  saying: 
"The  agreement  reported  is  to  see  Conant  paid,  if  Andrus 
hired  him,  adding  that  Andrus  did  hire  him.  We  can 
make  nothing  of  this  but  a  collateral  agreement."  "The 
allegation  that  Andrus  hired  Conant,  imports  that  it 
was  primarily  Andrus' s  business  to  run  the  still  of  Skin- 
ner and  Bulkely,  in  such  a  sense  that  he  was  debtor  to 
Conant ;  and  the  contract  of  Skinner  and  Bulkely,  that 
they  would  see  him  paid,  means  that  they  would  pay  him 
if  Andrus  did  not." 

§  203.  And  in  Cutler  v.  Hinton,  6  Randolph  (Virginia), 
509,  A.  D.  1828,  the  question  arose  upon  a  bill  in  equity, 
whether  a  promise  made  by  Cutler,  to  pay  for  goods  fur- 
nished by  Hinton  to  one  Love,  was  original  or  collateral. 
In  commenting  upon  the  testimony,  while  delivering  the 
opinion  of  the  court,  to  the  effect  that  the  promise  was 
collateral,  Carr,  J.,  stated  that  the  principal  witness  to  the 
.contract  had  given  three  versions  of  the  language  which 
was  used,  to  wit :  "that  Cutler  desired  him  to  say  to  any 
other  merchants  that  he  would  pay  for  any  goods  sold  to 
Love;"  that  Cutler  requested  him  to  inform  any  persons 
"of  whom  Love  might  purchase  goods,  that  he  would 
pay  for  Love  $4,000,"  and  the  same  respecting  any  per- 
sons "of  whom  Love  might  Avish  to  purchase  goods." 
The  learned  judge  added:  "Now,  take  either  of  these 
forms,  and  it  seems  to  me  that  this  is  a  collateral  under- 
taking. He  promises  to  pay  for  Love  to  any  person  that 
Love  might  purchase  or  wish  to  purchase  goods  of. 
Love  then  was  to  purchase  the  goods,  which  of  course 


Art.  II.]  Collateral  Undertakings.  263 

would  render  liim  liable  for  them,  and  Cutler  was  to  pay 
the  money  for  Love,  not  for  himself.  Unless  I  have  con- 
founded things  strangely,  this  is  clearly  collateral. "(a) 

§  204.  The  same  word  "purchase"  was  used  in  the  prom- 
ise construed  to  be  collateral  in  Cropper  v.  Pittman,  13 
Maryland,  190,(5)  although  the  court  seems  to  have  con- 
fined its  observations  upon  the  words  used,  to  the  promise 
to  see  the  plaintiffs  paid. 

§  205.  In  WalJcer  v.  Richards,  41  New  Hampshire,  388, 
A.  D.,  1860,  (c)  it  was  also  held  that  the  corresponding 
word  "sold,"  used  in  the  description  of  the  transaction 
between  the  promisee  and  the  third  person,  imported  that 
the  latter  had  become  liable  to  the  former,  and  that 
the  promise  was  consequently  collateral.  The  plaintiff  in 
that  case  was  allowed  to  recover,  only  upon  the  common 
counts  alleging  a  sale  and  delivery  to  the  defendant ;  he 
having  proved  an  original  verbal  promise  to  pay  for  goods 
delivered  to  the  others.  But  the  court  held  that  the  special 
counts  called  imperatively  for  a  writing. 

(2  )  Where  the  promise  was  to  become  a  party  to  a  note  or  bill  of  exchange  to 
be  made  by  the  third  person. 

§  206.  The  question  under  what  circumstances  a  verbal 
promise  to  accept  a  bill  of  exchange  is  valid,  belongs 
more  properly  to  mercantile  law.  We  have  already  seen 
that  the  liabilities,  which  the  common  law  leaves  to  be 
regulated  by  that  system,  constitute  a  class  of  exceptions 
to  the  provisions  of  the  statute  of  frauds  ;(<^)  and  it  is 
settled,  independently  of  the  statute,  that  a  valid  prom- 
ise to  accept  is  equivalent  to  an  acceptance,  and  may 
be  so  treated,  even  in  declaring,  (e)  While  it  is  clear 
that  a  verbal  acceptance  of  an  existing  bill  is  valid  by 

(a)  See  another  extract  from  this  opinion,  ante,  §  190. 

(b)  Ante,  §  198. 

(c)  See  the  case  fully  abstracted,  ante,  §  177. 

(d)  Ante,  chapter  third. 

(e)  Ontario  Bank  v.  Worthington,  12  Wendell  (New  York),  593. 


264  Collateral  Undertakings.  [Ch.  vii. 

the  law  mercliant,  there  has  been  considerable  doubt  to 
what  extent  a  verbal  promise  to  accept  a  bill  is  binding. 
The  case- of  Pillans  v.  Van  Mierop,  3  Burrow,  1663,  A.  D. 
1765,  seems  to  have  been  generally  regarded  as  authority 
for  the  proposition,  that  a  verbal  promise  to  accept  a  bill 
of  exchange,  thereafter  to  be  drawn,  is  always  equivalent 
to  an  acceptance ;  but,  if  this  was  the  meaning  of  the 
decision,  other  cases,  following  soon  afterwards,  shook  its 
authority ;(/)  and  even  before  the  Mercantile  Law  Amend- 
ment Act  of  1856  (19  and  20  Victoria,  chapter  97),  the  rule 
seems  to  have  been  settled  in  England,  that  a  promise  to 
accept  a  non-existing  bill,  although  in  writing,  would  not 
amount  to  an  acceptance,  even  in  favor  of  one  who  had 
discounted  the  bill  on  the  faith  of  the  promise,  (p')  In 
the  United  States,  the  weight  of  authority,  in  the  absence 
of  any  statutory  provision,  is  in  favor  of  holding  a  prom- 
ise to  accept  a  bill,  thereafter  to  be  drawn,  valid  as  an 
acceptancej  only  in  the  hands  of  a  person  who  has  taken 
it  for  value  on  the  faith  of  the  promise.  (^)  But  in  cases 
where  the  mercantile  law  applies,  these  questions  are  now 
regulated  by  special  statute  in  England,  and  in  most,  and 
probably  all  of  the  United  States.  In  other  cases,  the 
validity  of  a  verbal  promise  to  accept  a  draft  or  order,  is 
generally  governed  by  the  rules  applicable  to  other  verbal 
promises.  But  sometimes  it  is  evidence  of  a  fund  in  the 
hands  of  the  promisor  with  which  to  pay  the  debt ;  and 
then  questions  are  presented  which  will  be  treated  at 
length  in  a  subsequent  portion  of  this  volume. 

§  207.  The  point,  whether  a  verbal  promise  to  accept  a 
bill  to  be  thereafter  drawn  in  payment  of  the  debt  of  a. 

(/)  Pierson  v.  Dunlop,  2  Covvper,  571,  A.  D.  1777;  Mason  v.  Hunt,  1 
Douglas,  297,  A.  D.  1779;  Johnson  v.  Collings,  1  East,  98,  A.  D.  1800; 
Clarke  v.  Cock,  4  East,  57,  A.  D.  1803. 

ig)  Bank  of  Ireland  v.  Archer,  11  Meeson  and  Welsby,  383,  A.  D.  1843. 

(/i)  McEvers  v.  Mason,  10  Johnson  (New  York),  207;  Goodrich  v.  Gor- 
don, 15  Johnson,  6;  Coolidge  v.  Payson,  2  "Wheaton  (United  States),  66; 
and  see  1  Parsons  on  Notes  and  Bills,  pp.  292-294,  and  numerous  authori- 
ties collected  in  the  notes. 


Art.  II.]  COLLATEKAL   UNDERTAKINGS.  265 

third  person,  is  within  the  statute  of  frauds,  was  decided 
in  a  recent  American  case,  Wakefield  v.  Greenliood,  29 
California,  597,  A.  D.  1866.  There  the  action  was  brought 
by  a  teamster,  against  a  forwarding  and  commission  mer- 
chant at  Sacramento,  who  had  employed  the  plaintiff  to 
transport  certain  goods  of  one  Bar,  from  Sacramento  to 
Austin,  upon  a  verbal  promise  to  pay  any  order  or  draft 
which  Bar  might  draw  on  the  defendant  for  the  transpor- 
tation of  the  goods.  The  complaint,  after  setting  forth 
the  contract,  and  its  fulfilment  by  the  plaintiff,  stated  that 
the  plaintiflf  and  Bar  had  an  accounting  for  the  transpor- 
tation, upon  which  there  was  found  to  be  due  from  Bar  to 
the  plaintiff  one  thousand  dollars  ;  and  that  Bar  made  a 
draft  for  that  sum  upon  the  defendant,  which  the  plaintiflf 
accepted  in  payment  of  the  amount  so  due  to  him  from 
Bar ;  but  the  defendant  refused  to  pay  it,  etc.  Upon  this 
complaint,  and  the  evidence  in  the  cause,  the  Supreme 
Court  reversed  a  judgment  for  the  plaintiff.  In  the 
opinion  it  is  said,  that  if  by  the  agreement,  the  defendant 
had  assumed  a  direct  liability  for  the  cost  of  the  trans- 
portation, leaving  the  amount  to  be  agreed  upon  between 
the  plaintiff  and  Bar,  and  to  be  evidenced  by  Bar' s  draft 
upon  the  defendant,  the  promise  would  have  been  clear 
of  the  statute ;  but  that  such  is  not  the  case  made  by 
the  pleadings  or  by  the  evidence.  On  the  contraiy,  the 
complaint  expressly  states  that  Bar  became  indebted  to 
the  plaintiff,  and  the  draft  was  given  to  pay  that  debt; 
which  is  entirely  inconsistent  wdth  the  idea  that  the  service 
was  performed  at  the  request  of  the  defendant,  and  upon 
his  direct  promise  to  pay  ;  and  further,  that  the  promise 
was  not  to  pay  for  the  transportation,  but  to  pay  any  draft 
which  Bar  might  make  therefor  on  account  of  his  indebt- 
edness to  the  plaintiff;  the  allegations  of  the  complaint 
being  further  borne  out  by  the  evidence,  which  shows  that 
the  draft  was  to  be  paid  by  the  defendant  on  account  of 
Bar.(/) 

(t)  See  Taylor  v.  Hilary,  in  note  to  §  210. 


266  Collateral  Undertakings.  [Ch.  vii. 

§  208.  A  few  cases  are  appended  in  the  note,  where  a 
verbal  promise  to  accept  a  third  person' s  draft  or  order 
was  held  to  be  void,  the  circumstances  not  being  such  as  to 
sustain  the  premise  as  an  acceptance  within  the  mercan- 
tile law,  or  the  special  statutes  relating  to  that  subject. (^ 

§  209.  The  question  whether  the  statute  applies  to  a 
verbal  promise  to  indorse  the  bill  or  note  of  the  third 
person,  or  to  join  with  him  in  the  execution  of  a  promis- 
sory note,  where  the  consideration  moves  to  him,  although 
not  complicated  by  the  same  considerations  which  have 
caused  so  much  doubt  in  the  case  of  a  promise  to  accept 
his  bill,  has  been  subjected  to  embarrassments  of  a  differ- 
ent kind,  growing  out  of  some  English  decisions,  which 
have  already  been  comfnented  upon  at  length,  (/t)  The 
leading  American  case  on  this  subject,  is  Carmlle  v. 
Crane^  5  Hill,  483,  decided  in  the  New  York  Supreme 
Court,  A.  D.  1843.  There  the  declaration  stated  in  sub- 
stance, that  in  consideration  that  the  plaintiff  would  sell 
to  the  firm  of  G.  B.  &  J.  L.  Crane,  certain  goods  upon 
credit  at  a  specified  price,  the  defendant  promised  the 
plaintiff,  without  writing,  that  he  would  indorse  the  note 
of  G.  B.  &  J.  L.  Crane  at  six  months,  for  the  price  of  the 
goods  ;  and  it  also  averred  a  delivery  of  the  goods  and  a 
refusal  by  the  defendant  to  indorse  such  a  note.  The 
defendant  demurred  to  the  declaration ;  and  after  argu- 
ment, judgment  was  given  in  his  favor.  Cowen,  J.,  in 
delivering  the  opinion  of  the  court,  said  that  this  is  not 
analogous  to  a  promise  to  accept  a  bill  of  exchange, 
because  the  acceptor  is  the  principal  debtor,  and  the 
drawer  only  a  collateral  undertaker,  the  acceptance  being 
an  admission  of  funds  in  the  hands  of  the  acceptor  ;  and 
the  cases  do  not  say  that  a  verbal  promise  to  accept  a  bill 


( j )  Wheatley  v.  Strobe,  12  California,  92 ;  Luff  v.  Pope,  5  Hill  (New  York), 
413;  Loonie  v.  Hogan,  9  New  York  (5  Selden),  435;  Ontario  Bank  v.  Wor- 
thington,  12  Wendell  (New  York),  593. 

(Ic)  Jarmain  v.  Algar,  and  Bushell  v.  Beavan,  ante,  §§  113,  114. 


Art.  II.]  Collateral  Undertakings.  267 

for  the  accommodation  of  another  is  valicl.(Z)  But  the 
indorser  of  a  note  is  a  collateral  debtor,  the  maker  being 
the  principal ;  and  if  this  were  otherwise  on  the  nature  of 
an  indorsement,  the  statement  in  the  declaration  shows 
that  this  was  to  be  an  accommodation  indorsement  for  G.  B. 
&  J.  L.  Crane. 

§210.  "In  other  words,"  he  proceeded,  "it  was  a 
promise  to  become  their  surety  for  the  debt.  On  fulfilling 
the  promise  by  making  and  paying  such  an  indorsement, 
the  defendant  might  have  recovered  over  against  them  as 
for  money  paid  to  their  use.  Their  assent  to  the  defend- 
ant' s  promise  is  perhaps  to  be  intended ;  but  whether  so 
or  not,  the  defendant  finally  joining  them  in  the  note 
implies  their  ultimate  assent,  that  he  would  take  the  exact 
position  of  their  surety.  To  say  then,  that  this  is  not  in 
effect  a  promise  to  answer  their  debt,  would  be  a  sacrifice 
of  substance  to  sound.  It  would  be  devising  a  formulary 
by  which,  through  the  aid  of  a  perjured  witness,  a  creditor 
might  get  round  and  defraud"  (defeat)  "  the  statute.  He 
may  say,  '  You  did  not  promise  to  answer  the  debt  due 
to  me  from  A  ;  but  only  to  put  yourself  in  such  a  position 
that  I  could  compel  you  to  pay  it.'  Pray,  where  is  the 
difference,  except  in  words  ?  According  to  such  reason- 
ing, unless  you  recite  the  words  of  the  statute  in  your 
undertaking,  it  will  not  reach  the  case.  No  legislative 
provision  would  be  worth  any  thing  upon  such  a  construc- 
tion." The  learned  judge  then  commented  upon  several 
of  the  cases  cited  by  the  counsel  for  the  plaintiff,  none  of 
which,  he  contended,  maintains  any  principle  which  would 
sustain  this  promise,  except  Busliell  v.  Beavan,  which  he 
said  is  not  law,  and  Jarmain  v.  Algar^  which  is  ques- 
tioned. Judge  Story' s  remarks  in  D'  WoI/y.  Jiabaud,{m) 
were  also  referred  to,  as  to  some  extent  sustaining  the 
plaintiff's  position  ;  but  it  was  said,  that  he  admitted  that 

(I)  But  it  was  so  said  in  Maggs  v.  Ames,  4  Bingham,  470,  although  that 
case  seems  to  have  been  overlooked  in  the  discussions  of  the  question, 
(m)  Ante,  §  165. 


268  COLLATEKAL   UnDEETAKINGS.  [Ch.  VII. 

he  was  not  following  the  construction  of  the  statute,  but 
suggesting  what  would  be  a  better  construction  if  it  were 
res  nova.(?i) 


(n)  This  case  seems  to  have  been  decided  in  ignorance  of  the  judgment  of 
the  Court  of  Exchequer,  in  a  case  presenting  some  points  of  close  similarity; 
but  which  although  the  reports  are  very  confused,  and  in  some  respects 
conflicting,  we  think  can  be  reconciled  with  it,  and  also  with  Wakefield  v. 
Greenhood,  29  California,  597,  ante,  §  207.  We  refer  to  Taylor  v.  Hilary,  1 
Crompton,  Meeson  and  Roscoe,  741 ;  1  Gale,  22 ;  3  Bowling's  Practice  Cases, 
461 ;  and  5  Tyrwhitt,  373,  A.  D.  1835.  The  declaration  (all  the  reports  agree 
that  there  was  only  one  count)  stated,  in  substance,  that  the  defendant  had 
guarantied  the  payment  to  the  plaintiff,  of  the  price  of  such  goods,  not 
exceeding  200?.,  as  he  should  "allow  one  Henry  Holt  to  have,"  and  that  the 
olaintiff  did  deliver  the  goods  to  Holt,  who  had  not  paid  for  them,  etc.  The 
defendant  pleaded,  that  after  the  making  of  the  promise,  and  before  any 
breach  thereof,  it  was  "agreed,  by  and  between  the  plaintiff  and  the  defend- 
ant, that  the  plaintiff  should  supply  to  the  said  Henry  Holt  200?.  worth  of 
goods,  as  he  should  want  them,  and  that  such  goods  should  be  paid  for  at  the 
end  of  three  months,  by  a  joint  bill  at  four  months,  accepted  by  the  defend- 
ant;" and  that  this  agreement  was  accepted  by  the  plaintiff,  before  any 
breach  of  the  former,  in  full  discharge  thereof  To  this  plea  the  plaintiff 
demurred  specially,  and  the  demurrer  assigned  for  cause  two  grounds;  one 
of  which  was  that  there  Avas  no  difference  between  the  new  agreement  and 
the  old,  except  as  to  the  time  of  credit  given.  Upon  the  argument,  the 
plaintiff's  counsel  objected  to  the  plea,  that  it  did  not  state  that  the  new 
ao-reement  was  in  writing  and  signed,  as  required  by  the  statute  of  frauds; 
and  he  contended,  that  although  in  declaring  it  was  not  necessary  to  state 
that  an  agreement  within  the  statute  was  in  writing,  the  rule  was  otherwise 
in  pleading  such  an  agreement.  But  Parke,  B.,  said:  "The  first  agreement 
was  a  guaranty;  but  according  to  the  second  agreement,  the  defendant 
became  absolutely  bound  as  an  original  debtor.  In  order  to  bring  the  case 
within  the  authority  cited,  it  must  be  shown  that  the  second  agreement  was 
a  guaranty."  There  is  no  further  reference  to  this  particular  question,  the 
demurrer  having  been  overruled  upon  the  ground  that  the  second  agreement 
was  a  substituted  contract,  and  an  answer  to  an  action  upon  the  former;  and  that 
as  the  second  plea  did  not  amount  to  an  accord  and  satisfaction,  no  averment 
of  performance  was  necessary.  From  this  statement  it  would  appear,  that 
the  decision  of  the  court  was  to  the  effect  that  an  agreement  by  the  defend- 
ant, to  accept  a  bill  to  be  drawn  jointly  by  the  plaintiff  and  Holt,  in  pay- 
ment for  goods  to  be  supplied  by  the  plaintiff  to  Holt,  was  not  within  the 
statute.  This  is  undoubtedly  correct,  as  Holt  would  not  be  liable,  the  defend- 
ant being,  in  legal  effect,  the  purchaser  of  the  goods;  a  fact  which  also  dis- 
poses of  any  question  arising  under  the  mercantile  law.     But  the  plaintiff 


Art.  II.]  Collateral  Undertakings.  269 

§  211.  So  also  where  the  promise  is  to  become  the  maker 
of  a  promissory  note,  jointly  mth  the  third  person,  as  in 
Bronson  v.  Stroud,  2  McMullan  (South  Carolina),  372, 
decided  A.  D.  1842.  There  the  plaintiff  was  applied  to  by 
one  Henning  to  sell  him  some  hogs,  to  which  he  replied 
that  he  must  be  made  safe.  Henning  then  applied 
to  the  defendant,  who  went  to  the  plaintiff  and  said 
that  he  would  be  Henning' s  security,  and  requested  him 
to  let  Henning  have  the  hogs,  specifying  the  number ;  but 
he  said  that  he  could  not  wait  till  they  were  weighed,  and 
directed  the  plaintiff,  when  they  should  be  weighed,  to  make 
the  calculation  and  draw  a  note  for  the  amount,  have  Hen- 
ning sign  it,  and  bring  or  send  it  to  him,  and  he  would 
sign  it  with  Henning.  The  hogs  were  delivered,  and  a  joint 
and  several  note,  signed  by  Henning,  was  tendered  to  the 
defendant  for  his  signature,  but  he  refused  to  sign  it. 
The  case  was  submitted  to  the  jury  upon  the  usual  charge 
to  inquire  to  whom  credit  was  given,  and  they  found  a 
verdict  for  the  plaintiff ;  and  upon  appeal  it  was  held,  that 
upon  the  facts  proved  the  promise  was  collateral  as  matter 
of  law,  and  a  nonsuit  was  ordered  to  be  entered.  In 
Taylor  v.  Drake,  4  Strobhart,  431,  decided  in  the  same 
court,  A.  D.  1850,  the  facts  approached  still  nearer  to 
those  in  Carmlle  v.  Crane.     There  one  Mrs.  Owens  had 

had  leave  to  amend,  and  after  amendment  the  cause  was  tried;  and  the 
special  plea  is  stated,  in  the  report  of  the  trial  of  the  cause,  in  7  Carrington 
and  Payne,  30,  to  have  alleged  that  the  second  agreement  was  that  there 
should  be  a  "joint"  bill  accepted  by  the  defendant  and  Holt]  and  it  is  there 
said  that  the  defendant  having  proved  this  plea,  but  whetlier  by  writing  or 
orally,  is  not  mentioned,  the  plaintifif  elected  to  b^  nonsuited.  This  would 
present  the  question  in  an  entirely  different  phase;  but  notwithstanding  that 
the  report  in  Carrington  and  Payne  implies,  that  the  amendment  consisted 
in  withdrawing  the  demurrer  and  filing  a  replication  ;  and  a  remark  attributed 
to  Baron  Parke,  in  5  Tyrwhitt,  would  indicate  that  the  original  plea  alleged 
that  some  other  person  was  to  join  with  the  defendant  as  acceptor ;  the 
probability  i.-i,  that  the  plea  was  as  stated  in  the  reports  of  the  argument ;  and 
that  after  the  d;cision  of  the  demurrer,  the  parties  pleaded  de  novo,  begin- 
ning with  the  declaration.  If  so  the  plea  at  the  trial  was  not  the  one 
which  had  been  adjudged  to  be  without  the  statute,  upon  "Jie  argument  of 
the  demurrer;  and' for  aught  that  appears,  it  was  proved  by  a  writing. 


270  Collateral  Undeetakings.  [Cli.  vii, 

purchased  from  tlie  plaintiffs  goods  on  credit  at  an  auction 
sale,  and  she  was  entered  as  the  purchaser  on  the  plaint- 
iffs' books ;  the  defendant  was  present,  advising  and 
assisting  her  ;  it  was  affirmatively  proved  that  she  had  no 
credit ;  the  plaintiffs  refused  to  deliver  the  goods,  unless 
the  defendant  would  indorse  her  note  for  the  amount, 
which  he  verbally  agreed  to  do  ;  and  the  goods  were  there- 
upon delivered  to  her.  The  court  set  aside  a  verdict  for 
the  plaintiff  and  ordered  a  nonsuit  to  be  entered. 

§  212.  The  same  principle  has  been  established  in  Eng- 
land by  the  recent  case  of  Mallett  v.  Bateman,  35  Law 
Journal,  N.  S.,  Common  Pleas,  40,  decided  A.  D.  1865. (o) 
There  the  plaintiff  had  entered  into  a  contract  to  supply 
the  firm  of  Calvert  &  Co.  with  iron  plates,  to  be  used  in 
constructing  a' railway  bridge.  By  the  contract,  payment 
was  to  be  made  half  in  cash  and  half  in  bills  ;  but,  after 
part  of  the  goods  had  been  delivered,  the  payments  not 
having  been  regularly  made,  the  plaintiff  threatened  to 
keep  back  the  remainder  of  the  plates,  unless  the  defend- 
ant would  protect  the  plaintiff  against  loss  on  the  bills, 
for  which  he  would  allow  him  a  discount  of  three  per  cent. 
The  defendant,  who  was  interested  in  the  work  in  which 
Calvert  &  Co.  were  using  the  plates,  assented  to  this,  and 
verbally  agreed  that  he  would  take  their  bills  from  the 
plaintiff,  at  three  per  cent  discount,  for  the  amount  of  all 
future  invoices  ;  and  on  the  plaintiff  proposing  to  indorse 
the  bills  without  recourse,  the  defendant  objected  to  his 
doing  so,  and  agreed  to  give  him  "such  document,  if  he 
should  simply  indorse  Calvert's  bill,  as  should,  under 
legal  advice,  free  him  from  all  suspicion  of  risk."  There- 
upon the  plaintiff  forwarded  the  remainder  of  the  plates, 
according  to  the  contract,  and  received  from  Calvert  & 
Co.  an  acceptance  of  a  bill  for  the  amount  of  the  invoices  ; 

(o)  S.  C.  13  Law  Times,  N.  S.,  410;  1  Law  Reports,  Common  Pleas,  163; 
12  Jurist,  N.  S.,  122 ;  U  Weekly  Reporter,  225 ;  and  1  Harrison  and  Ruther- 
ford, 109.  Also  reported  in  the  court  below,  10  Law  Times,  N.  S.,  869;  33 
Law  Journal,  N.  S.,  C.  P.,  243;  10  Jurist,  N.  S.,  865;  and  16  Common  Bench, 
N.  S.,  530. 


Art.  II.]  CoLLATEEAL  Undeetakings.  271 

but,  before  the  same  had  been  presented  to  the  defendant 
to  be  cashed,  Calvert  &  Co.  failed,  and  the  defendant  then 
refused  to  cash  it.  In  an  action  in  the  Common  Pleas 
upon  this  promise,  the  plaintiff  had  a  verdict ;  w^hereupon 
the  defendant  obtained  a  rule  nisi  to  set  aside  the  verdict, 
which,  after  argument  was  made  absolute.  From  this 
decision  the  plaintiff  appealed  to  the  Exchequer  Chamber, 
where  the  judgment  below  was  affirmed. 

§  213.  Pollock,  C.  B.,  delivering  the  unanimous  opinion 
of  the  Exchequer  Chamber,  said  that  the  real  question 
was,  "whether  a  contract  to  give  a  guaranty  does  not 
require  to  be  in  writing,  as  much  as  a  guaranty  itself;" 
he  then  referred  to  the  decisions  of  the  courts  under  the 
statute  of  uses,  as  having  practically  nullified  that  statute, 
and  added  :  "I  hope  we  shall  avoid  falling  into  a  similar 
error  in  construing  the  statute  of  frauds.  The  contract 
here  is  substantially  a  contract,  that  if  the  buyer  of  the 
goods  does  not  pay  the  plaintiff  for  them,  the  defendant  will, 
in  consideration  of  a  discount  of  3Z.  per  cent,  undertake  that 
the  plaintiff  shall  not  suffer  ;  for  the  defendant  undertakes 
to  hold  the  bill  without  having  recourse  to  the  plaintiff.  It 
is  an  agreement  by  which  the  buyer  is  not  to  be  exonerated, 
and  by  which  the  defendant  engages  to  indemnify  the 
seller  against  the  buyer's  default.  That  is  within  the 
statute  ;  and  therefore  the  judgment  of  the  court  below 
ought  to  be  affirmed." (j9  ) 

§  214.  But  in  all  these  cases  the  consideration  of  the 
promise  enured  to  the  benefit  of  the  third  person,  and  he 
was  substantially,  as  well  as  formally,  the  principal 
debtor.  Where  however  the  third  person  was  only 
formally  the  •principal  debtor,  the  real  principal,  as 
between  the  parties  to  the  promise,  being  the  promisor. 


(p)  See  also  Emmet  v.  Dewhiirst,  15  Jurist,  1115,  and  3  Macnaghten  & 
Qrordon,  587,  cited  post  §  342.  The  distinction  between  the  case  in  the 
text  and  Busliell  v.  Beavan,  ante,  §  114,  would  appear  to  turn  entirely  upon 
the  fact,  that  iu  the  latter  case  the  defendant  undertook  that  another  person 
should  execute  a  guaranty. 


272  COLLATEEAL   UnDEETAKINGS.  [Ch.  VII. 

the  rule  is  otherwise.  In  that  case  the  promise  is  not 
within  the  statute ;  this  being  one  application  of  a  princi- 
ple, which  may  be  said  to  govern  or  qualify  nearly  every 
rule,  by  which  the  application  of  the  statute  is  determined ; 
namely,  that  he  who  is  substantially  the  primary  debtor, 
shall  not  be  allowed  to  escape  from  the  fulfilment  of  his 
promise  to  pay  his  own  debt,  because  he  has  put  it  in  the 
form  of  a  promise  to  pay  the  debt  of  another. 

§  215.  Thus  in  Westcott  v.  Keeler,  4  Bosworth  (New 
York),  564,  decided  A.  D.  1859,  the  plaintiff  sued  as 
assignee  of  one  S.  H.  Mattison,  setting  forth  specially 
in  his  complaint,  the  facts  upon  which  he  founded  his 
right  to  recover,  which  appeared,  upon  the  trial,  as  far  as 
they  involve  this  question,  to  be  substantially  as  follows. 
Mattison  had  loaned  the  defendant  $3000,  upon  a  note  of 
one  Rumsey  for  that  amount,  indorsed  by  the  defendant. 
On  the  day  when  the  note  matured,  the  defendant  and 
Mattison  agreed  verbally,  that  Mattison  would  surrender 
the  note. to  Rumsey,  and  procure  from  him  a  new  note  of 
the  same  amount  in  renewal  thereof,  which  he  would 
bring  to  the  defendant,  and  the  defendant  would  then 
indorse  it ;  pursuant  to  that  agreement,  Mattison  surren- 
dered the  maturing  note  to  Rumsey,  who  gave  him  a  new 
note  on  demand  for  the  same  amount,  payable  to  the 
order  of  himself  (Rumsey),  and  by  him  indorsed ;  which 
was  immediately  taken  by  Mattison  to  the  defendant,  who 
refused  to  indorse  it  after  Rumsey,  as  Mattison  requested 
him  to  do,  saying  that  Rumsey  would  pay  it  in  a  few 
days.  Subsequently  Rumsey,  from  time  to  time,  made 
payments  to  Mattison  upon  the  note  ;  but  finally  Mattison 
sued  him  upon  the  note,  and  recovered  judgment,  and  this 
action  was  brought  for  the  unpaid  balance.  The  plaintiff 
was  nonsuited  at  the  trial,  on  several  grounds  ;  one  of 
which  was  that  the  promise  to  indorse  Rumsey' s  note  was 
void  by  the  statute  of  frauds  ;  and  on  appeal  the  defend- 
ant' s  counsel  cited  Oallager  v.  Brunel{q)  and  Carville  v. 

(2)  Ante,  §  110. 


Art.  III.]         Collateral  Undertakings.  273 

Crane,  in  support  of  his  position,  that  the  agreement  Avas 
within  the  statute.  But  the  judgment  was  reversed, 
Hoffman,  J.,  distinguishing  those  cases  from  the  one  at 
bar,  on  the  ground  that  in  the  former  "there  was  no 
original  debt  between  the  parties  to  the  promise." 

ARTICLE  III. 

Where  a  promise  la  not  witMn  the  statute,  although  it  was  in  tenns  conditioEal  upon  non* 
payment  by  a  third  person. 

§  216.  It  was  said,  at  the  beginning  of  this  chapter,  that 
a  promise,  conditional  upon  default  in  payment  by  a  third 
person,  generally  leaves  no  room  for  the  only  theory,  upon 
which  absolute  promises  are  held  to  be  original,  in  other 
cases  where  third  persons  are  concerned ;  namely,  that  the 
third  person  was  not  concurrently  liable  with  the  prom- 
isor. There  are  however  a  few  cases,  in  which  this  theory 
can  be  reconciled  with  such  a  conditional  promise,  and  in 
those  the  statute  does  not  apply.  In  general  terms,  they 
may  be  said  to  include  all  cases,  where  the  presumption 
of  liability  on  the  part  of  the  third  person,  arising  from 
the  words  used,  can  be  overcome  by  proof  that  he  did  not 
incur  any  liability  whatever ;  but  for  all  practical  pur- 
poses, they  may  be  restricted  to  those  where  he  was  an 
entire  stranger  to  the  promise  ;  for  it  is  difficult  to  conceive 
a  case,  where  the  third  person,  (unless  he  was  under  a  dis- 
ability,) could  be  a  consenting  party  to  a  promise  of  this 
character,  without  incurring  any  liability  himself.  This 
exception  results  from  necessity ;  for  where  no  one  assumed 
any  liability  except  the  promisor,  it  would  be  an  absurdity 
to  say  that  his  undertaking,  whatever  may  be  its  form,  is 
a  promise  to  answer  for  the  debt,  default,  or  miscarriage 
of  another  ;  and  unless  it  is  binding  upon  him,  the  prom- 
isee will  be  wholly  without  remedy,  {a) 


(a)  "If  A  promise  B,  that  in  consideration  of  his  doing  a  particular  act, 
C  shall  pay  him  such  a  sum,  or  that  if  C  do  not  pay  him  such  a  sum,  he  (A) 
will  pay  the  same,  this  is  no  collateral  promise,  unless  C  was  privy  to  the 
contract  and  recognized  himself  as  debtor  also  ;  but  otherwise  A  is  the  sole 
debtor,  and  the  statute  is  out  of  the  case."  Roberts  on  Fraud?,  223. 
35 


274  Collateral  Undertakings.  [Ch.  vii. 

§  217.  There  is  an  early  case  upon  this  subject,  Masters 
V.  Marriott,  3  Levinz,  363,  decided  in  1694;  where,, 
although  the  statute  of  frauds  was  not  directly  brought 
in  question  (probably  because  the  promise  was  in  writing), 
the  same  point  was  presented  upon  the  pleadings,  which 
raised  the  precise  question  whether  the  promise  was  orig- 
inal or  collateral.  There  the  plaintiff  declared  in  assump- 
sit, that  the  defendant  had  sold  him  a  certain  gelding  for 
eight  guineas  ;  that  it  was  part  of  the  agreement  that,  if  the 
plaintiff  did  not  like  the  gelding,  and  delivered  it  to  one 
Barham  for  the  defendant' s  use,  Barham  should  repay  the 
eight  guineas,  and,  if  Barham  did  not  pay  it,  the  defendant 
would  repay  it  on  request ;  that  the  plaintiff  did  not  like 
the  gelding,  and  delivered  it  to  Barham,  and  requested 
him  to  pay  the  eight  guineas,  which  he  refused  to  do. 
There  was  another  count  for  eight  guineas,  had  and 
received  to  the  plaintiff's  use,  and  the  declaration  con- 
cluded with  an  averment  that  the  defendant  had  not, 
although  often  requested,  repaid  the  said  sums,  to  the 
damage  of  the  plaintiff,  30Z.  On  non-assumpsit  pleaded, 
a  verdict  was  given  for  the  plaintiff,  with  entire  damages  ; 
and  it  was  moved  in  arrest  of  judgment,  and  argued  seve- 
ral times,  that  the  promise  to  repay  the  eight  guineas  if 
Barham  did  not  do  it,  was  a  collateral  promise  to  pay  in 
default  of  another,  and  that  the  defendant  was  not  a 
debtor,  but  only  a  surety  in  default  of  Barham ;  conse- 
quently, that  a  special  request  to  the  defendant  ought  to 
have  been  averred,  and  the  general  request  was  insufficient ; 
and  further,  that  there  should  have  been  a  notice  that 
Barham  had  not  paid,  and  a  special  request  thereupon ; 
and  the  damages  being  entire  on  both  counts,  it  was  con- 
tended that  the  plaintiff  could  not  have  judgment.  But 
at  last  it  was  resolved  by  the  whole  court,  that  this  was 
not  a  collateral  contract  to  pay  a  debt  for  another,  but  the 
whole  was  one  entire  contract  upon  the  sale,  which  was 
void  and  at  an  end,  when  the  condition  was  performed,  by 
dislike  of  the  gelding  and  returning  it  to  Barham  ;  so  that 
the  money  was  then  in  the  defendant's  hands  to  the 
plaintiff's  use,  and  Barham  was  only  the  defendant's  ser- 


Art.  III.]         Collateral  Undertakings.  275 

vant,  to  receive  the  gelding  and  repay  the  money  ;  and  l)y 
the  not  doing  whereof,  the  defendant,  as  master,  was  the 
debtor.  Judgment  was  thereupon  given  for  the  plaintiff 
upon  the  whole  declaration,  and  affirmed  in  error. 

§  218.  In  Gordon  v.  Martin^  Fitzgibbon,  302,  decided 
A.  D.  1732,  a  similar  question  also  arose  upon  the  plead- 
ings. There  the  plaintiff  declared  in  indebitatus  assump- 
sit, for  work  and  labor  done  by  the  plaintiff,  at  the  special 
instance  and  request  of  the  defendant;  and  at  the  trial 
the  proof  was,  that  the  services  were  performed  touching 
the  sale  of  an  estate,  for  which  one  L.  S.  was  treating 
with  the  defendant' s  brother ;  and  the  defendant' s  promise 
was  contained  in  a  letter  written  by  him,  in  the  following 
words:  "If  L.  S.  shall  go  through  the  purchase,  my 
brother  will  give  you  a  handsome  gratuity  for  the  trouble 
and  pains  you  shall  be  at  in  transacting  that  affair,  which 
I  promise  and  assure  you  shall  not  be  less  than  300Z. 
My  meaning  is,  you  shall  be  paid  when  the  conveyances 
shall  be  executed."  And  the  question,  whether  the  evi- 
dence maintained  the  declaration,  was  saved  for  the  opin- 
ion of  the  court.  The  plaintiff  had  judgment  upon  his 
motion,  the  whole  court  holding  that  the  work  and  labor 
"was  at  his  request  and  upon  his  credit ;"  and  that  where 
a  special  agreement  has  been  performed,  a  general  inde- 
bitatus assumpsit  will  lie.  And,  upon*  the  first  of 
these  points,  Mr.  Justice  Lee  said  that  "there  was  a 
difference  between  a  conditional  and  an  absolute  under- 
taking ;  as  if  A  promise  to  pay  B  such  a  sum  if  C  does 
not,  there  A  is  but  a  security  for  C  ;  but  if  A  promise  that  C 
will  pay  such  a  sum,  A  is  the  principal  debtor,  for  the  act 
was  done  upon  his  credit,  and  no  way  upon  C." 

§  219.  These  two  early  cases  are  frequently  referred  to 
in  the  books,  upon  the  point  now  under  consideration ; 
and,  although  the  statute  was  not  brouglit  directly  in 
question  in  either,  they  illustrate  very  fairly  two  varieties 
of  this  species  of  contract  to  which  it  does  not  apply.  In 
the  one,  the  third  person  was  brought  in  as  the  mere 


276  Collateral  Undertakings.  [Ch.  vil 

servant  of  the  promisor,  through  whom  the  latter  agreed 
to  fulfil  his  own  engagement  to  respond,  made  upon  a 
consideration  moving  entirely  to  himself ;  in  the  other,  the 
third  person  apparently  received  the  entire  benefit  of  the 
consideration,  and  the  defendant' s  promise  was  held  to  be 
original,  solely  because  the  services  did  not  appear  to 
have  been  rendered  at  the  request  of  the  third  person,  so 
as  to  raise  an  implied  assumpsit  on  his  part  to  pay  for 
them.  The  former  is  the  case  where  the  question  most 
commonly  arises,  and  is  most  easily  disposed  of;  for  in 
the  latter,  the  presumption  of  a  request  from  the  accept- 
ance of  the  benefit  conferred,  is  generally  so  strong,  that 
very  slight  proof  will  suffice  to  establish  the  third  per- 
son's liability.  Still,  wherever  it  fairly  appears  from  the 
evidence,  that  the  service  was  rendered  to  the  third  person, 
without  his  express  or  implied  request,  he  is  not  liable, 
whatever  may  have  been  the  benefit  which  he  may  have 
derived  therefrom;  and  in  all  such  cases  a  conditional 
promise  is  without  the  statute.  (5) 

(b)  Thus  in  Dunbar  v.  Williams,  10  Johnson  (New  York),  249,  it  was  held 
that  a  physioan  could  not  recover  for  services  rendered,  and  medicine  far- 
nished,  to  the  defendant's  slave,  in  curing  him  of  a  disease,  upon  the  appli- 
cation of  the  slave,  and  without  the  defendant's  request.  And  in  Bartholomew 
V.  Jackson,  20  Johnson,  28,  the  plaintiff  was  not  allowed  to  recover  for  hi3 
services  in  removing  the  defendant's  wheat,  to  preserve  it  from  being  con- 
sumed by  fire,  buttpithout  the  knowledge  or  privity  of  the  defendant.  So 
also,  in  Ingraham  v.  Grilbert,  20  Barbour  (New  York),  151,  the  same  rule  was 
applied  where  the  plaintiff  had  paid  a  debt  of  the  defendant  due  to  a  third 
person,  and  there  was  no  proof  of  a  prior  request;  although  it  was  shown 
that  tlie  defendant  had  subsequently  admitted  his  liability.  So  in  Willis  v.  Hob- 
son,  37  Maine,  403,  where  the  plaintiffs,  on  the  last  day  of  grace,  and  a  few 
minutes  before  the  close  of  business,  had  indorsed  the  defendant's  note,  lying 
in  the  bank  where  it  was  payable,  and  the  next  day  had  paid  it;  it  appearing 
that  the  indorsement  was  made  because  it  was  not  convenient  to  pay  the 
money  at  the  moment,  and  to  save  it  from  being  protested ;  and  that  both  the 
indorsement  and  payment  were  made  at  the  request  of  a  person,  to  whom 
the  defendant  had  intrusted  the  money  to  pay  the  note,  but  who  had  mis- 
appropriated it.  And  in  Adams  v.  Hill,  15  Maine,  215,  ante,  §  199  note,  it 
was  held  that  the  contract  was  original,  and  upon  sufficient  consideration, 
inasmuch  as  the  corporation  was  not  bound  by  it.  See  also  Richardson  v. 
Williams,  49  Maine,  558,  and  Ellison  v.  Wisehart,  29  Indiana,  32,  cited  here- 
after, where  questions  a-ose  in  this  connection  under  the  statute  of  frauds. 


Art.  III.]         Collateral  Undertakings.  277 

§  220.  A  remarkable  case,  where  a  conditional  promise 
was  held  to  be  original,  under  circumstances  where  it 
would  appear,  at  first  sight,  that  these  principles  called 
for  a  contrary  decision,  is  reported  under  the  title  of 
Blodgett  v.  T7ie  Town  of  Lowell,  33  Vermont,  174,  A.  D. 
1860.  There  one  Guindon,  a  poor  person,  had  been 
injured  by  an  accident,  and  was  conveyed  to  the  house  of 
the  plaintiff,  "a  very  infirm  old  man,  who  objected  in 
vain  to  his  being  left  with  him,  and  who  applied  immedi- 
ately to  the  overseer  of  the  poor  of  the  town  of  Lowell  to 
support  him  ;"  the  overseer,  in  his  ofiicial  capacity,  told 
the  plaintiff  to  take  good  care  of  him,  and  if  Guindon  did 
not  pay  the  plaintiff,  he,  the  overseer,  would  see  that  the 
plaintiff  had  liis  pay.  It  was  shown  that  Guindon  had 
some  trifling  property  ;  but  the  court  decided  that  he  was 
a  pauper  within  the  meaning  of  the  statute  on  that  subject, 
and  chargeable  to  the  town  of  Lowell.  A  judgment  in 
favor  of  the  plaintiff  was  affirmed,  the  Supreme  Court 
holding  that  the  promise  was  original  and  not  within  the 
statute  of  frauds  ;  and  that  the  town  was  liable  to  the 
plaintiff  for  the  support  of  the  pauper,  furnished  upon 
the  faith  of  the  overseer's  promise.  The  opinion  con- 
ceded that  in  an  ordinary  case,  such  a  promise  would  be 
in  terms  collateral;  "but,"  it  was  said,  "the  peculiar 
circumstances  of  this  transaction  clearly  take  it  out  of  the 
general  rule,  and  forbid  the  idea  of  any  such  intention." 

§  221.  The  reasons  assigned  for  holding  the  promise  to 
be  original,  were,  1,  that  the  person  injured  was  a  pauper 
whom  nobody  would  credit ;  2,  that  the  application  to  the 
town  showed  that  the  plaintiff  would  not  rely  upon  him 
for  payment ;  3,  that  he  was  legally  chargeable  to  the 
town,  which  was  primarily  liable  ;  and  4,  that  there  was  no 
proof  of  any  contract  with  the  pauper  himself.  It  is  evi- 
dent that  the  third  of  the  reasons  assigned  by  the  court  is 
the  pivot  upon  which  the  whole  case  turned  ;  the  other 
three  are  important  only  as  far  as  they  bring  out  the  force 
of  this  central  idea;  for  standing  alone,  they  would  fit 
almost  every  case  as  well  as  this.     The  opinion  distinctly 


278  Collateral  Undertakings.         [Cli.  vii. 

states  that  under  the  statute  of  Vermont,  the  notice  given 
by  the  plaintiJff  was  sufficient,  to  throw  the  pauper' s  sup- 
port absolutely  upon  the  town.  If  therefore  the  town  was 
absolutely  and  primarily  liable,  the  condition  that  the 
plaintiff  should  call  upon  the  pauper  in  the  first  place  for 
payment,  may  be  regarded,  not  as  a  qualification  of  lia- 
bility, but  as  a  condition  inserted  by  the  absolute  prom- 
isor, merely  for  his  own  convenience ;  the  person  upon 
whom  the  plaintiff  was  in  the  first  place  to  call,  not  being 
a  debtor  or  a  party  to  the  contract,  but  the  mere  servant 
of  the  promisor,  pro  hac  vice,  precisely  as  Barham  was 
in  Masters  v.  Marriott. 

§  222.  As  a  contrast  to  the  last  case,  we  give  an  abstract 
of  one  where  a  conditional  promise  was  held  to  be  col- 
lateral, notwithstanding  that  the  third  person  was  not 
liable  at  the  time  it  was  made  ;  but  the  case  can  be  made 
to  harmonize  with  the  others  on  this  subject,  although 
some  of  the  remarks  of  the  court  may  be  open  to  criticism. 
In  Blanlc  v.  Dreher,  25  Illinois,  331,  decided  A.  D.  1861, 
the  defendant  (appellant)  had  received  an  order  from  one 
Cunningham,  for  a  large  quantity  of  brick,  which  he 
could  not  fill,  and  he  carried  the  order  to  the  plaintiff's ; 
thereupon  one  of  the  latter  went  to  inquire  from  another 
person  as  to  Cunningham's  responsibility,  when  the 
defendant  said,  ' '  You  need  not  inquire  further ;  Cunning- 
ham says  he  will  pay  for  them  in  thirty  days  ;  only  send 
up  the  brick ;  they  need  them  very  badly ;  and  if  he  don't 
pay  for  them  in  thirty  days,  I  will  be  good  for  them." 
The  plaintiff  answered,  "that  will  do,"  or  "I  am  satisfied; 
I  will  send  him  the  brick."  The  brick  were  delivered 
accordingly  to  Cunningham,  and  received  by  him,  and 
the  next  day  one  of  the  plaintiffs  called  on  Cunningham, 
who  objected  to  the  quality,  but  finally  said  that  if  one 
Miller  accepted  the  brick,  the  plaintiffs  would  get  their 
pay  in  thirty  days.  Miller  came  the  next  day  and 
accepted  the  brick,  "at  the  price  at  which  they  were 
billed  ;"  and  Cunningham  credited  the  plaintiffs  with  the 
amount,  to  be  paid  in  thirty  days.    The  defendant' s  name 


Art.  III.]         Collateral  Undertakings.  279 

was  not  mentioned,  in  the  conversation  between  the 
plaintiff  and  Cunningham.  In  an  action  upon  the  defend- 
ant's  promise,  the  cause  was  tried  by  the  court  without  a 
jury,  and  the  plaintiff  had  judgment,  which  was  reversed 
on  appeal,  because  it  appeared  that  Cunningham  was 
liable;  the  court  saying,  "whether  an  undertaking  is 
original,  or  collateral  merely,  is  to  be  determined,  not 
from  the  particular  words  used,  but  from  all  the  circum- 
stances attending  the  transaction.  Both  the  terms  of  the 
contract,  and  the  circumstances  of  the  transaction  show 
to  our  minds  quite  conclusively,  that  Blank's  undertak- 
ing was  collateral."  The  opinion  added,  that  the  brick 
were  bought  by  Blank  for  Cunningham,  as  the  sellers 
knew;  and  it  concluded  by  saying,  that  "Cunningham 
was  liable  the  moment  the  brick  were  delivered  to  him."  (c) 

§  223.  On  the  other  hand,  in  Mease  v.  Wagner,  1  McCord 
(South  Carolina),  395,  A.  D.  1821,  the  promisor  was  a  mere 
volunteer,  whose  authority  was  not  afterwards  recognized. 
There  the  defendant,  before  any  thing  was  furnished,  had 
undertaken  to  be  responsible  to  the  plaintiff  for  the  funeral 
expenses  of  the  widow  of  a  Doctor  Bradley,  saying, 
"  charge  them  to  the  estate  of  Dr.  Bradley,  and  as  soon  as 
his  nephew  comes  to  town,  he  will  pay  for  them,  or  I  will." 
It  appeared  that  the  defendant  was  merely  a  friend  of  the 
family ;  that  Dr.  Bradley  had  left  his  property  to  his 


(c)  It  is  believed  that  the  last  proposition  cannot  be  sustained,  if  the  facta 
are  correctly  stated  in  the  report.  These  indicate  that  Cunningham  was  no 
party  to  the  original  contract  between  the  plaintiffs  and  the  defendant; 
indeed  it  would  prima  facie  appear  that  this  transaction  was  merely  a  sale  to 
the  defendant,  to  enable  him  to  fulfil  Cunningham's  order.  But  the  latter 
became  liable  when  he  accepted  the  brick;  and  it  is  evident  from  what  is 
said  respecting  Miller's  acceptance,  that  they  were  accompanied  with  a  bill 
which  showed  a  sale  from  the  plaintiffs  to  Cunningham.  The  legal  construc- 
tion of  the  transaction  would  seem  to  be,  that  the  defendant  assumed,  without 
authority,  to  act  as  Cunningham's  agent  in  ordering  the  brick;  and  the 
latter,  by  his  subsequent  ratification,  waived  the  want  of  authority,  and 
became  liable  ab  initio.  The  defendant's  undertaking  was  then  clearly  col- 
lateral ;  as  the  plaintiffs  were  concluded  by  their  own  act,  from  insisting  that 
the  sale  was  made  to  him. 


280  Collateral  Undertakings.  [Ch.  vii. 

widow  for  life,  with  remainder  to  his  nephew ;  but  the 
widow  had  also  a  separate  estate  of  her  own.  The  nephew 
refused  to  pay  the  bill,  and  the  plaintiff  thereupon  brought 
this  action  against  the  defendant  upon  her  promise,  and 
recovered.  Upon  a  motion  for  a  new  trial,  it  was  held  that 
the  defendant  was  liable,  notwithstanding  the  statute, 
because  she  undertook  for  the  representative  of  Doctor 
Bradley,  against  whom  no  action  would  lie  for  the  funeral 
expenses ;  but  that  if  she  had  undertaken  for  the  repre- 
sentative of  Mrs.  Bradley,  who  was  legally  bound  to  pay 
the  funeral  expenses,  the  rule  would  have  been  different. 

§  224.  In  most  of  the  preceding  cases,  the  promise  was 
conditional  by  its  terms,  but  in  Walker  v.  Norton^  29 
Vermont,  226,  A.  D.  1857,  it  was  conditional  only  by 
implication ;  but  the  same  principle  was  applied.  There 
the  question  was,  whether  the  defendant  was  entitled  to'a 
set  off  against  the  demand  of  the  plaintiff,  arising  upon  the 
following  facts.  The  defendant  was  one  of  the  students  in 
an  academy,  of  which  the  plaintiff  was  the  preceptor ;  and 
at  the  request  of  the  plaintiff,  he  assumed  the  expenses, 
and  took  charge  of  the  preparations  for  an  exhibition  of 
the  students,  upon  the  plaintiff's  promise  that  he  should 
lose  nothing,  but  be  indemnified  by  the  plaintiff  for  his 
services  and  expenses.  It  appeared  that  the  exhibition 
was  principally  an  affair  of  the  students,  and  they,  as  well 
as  the  plaintiff,  expected  to  meet  the  expenses  connected 
with  it,  by  a  subscription  which  had  been  obtained  for 
the  purpose  ;  the  defendant  being  one  of  the  committee 
appointed  by  the  students,  to  collect  the  subscriptions. 
The  amount  subscribed  and  the  amount  collected  did  not 
appear ;  but  it  appeared  that  all  of  the  subscription  was 
not  collected,  and  that  the  amount  collected  fell  short  of 
reimbursing  the  defendant,  by  the  sum  which  he  inter- 
posed as  a  set  off.  It  was  held  that  the  defendant  was 
entitled  to  the  setoff,  the  court  saying:  "But  when  no 
other  person  is  liable  for  the  same  debt,  the  case  is  not 
within  the  statute,  although  the  party  may  expect  to 
obtain  pay  from  some  other  fund  which  fails.    As  if  a 


Art.  III.]         Collateral  Undertakings.  281 

teaclier  be  hired  to  teach  either  a  public  or  a  private  school, 
to  be  paid  a  certain  price,  if  in  one  case  the  public  money 
do  not  pay,  or  in  the  other  the  tuition  do  not  pay  ;  this  is 
an  original,  and  not  a  collateral  undertaking,  although  it 
is  conditional  in  some  sense.  Such  is  the  present  case. 
The  plaintiff  was  to  pay  what  the  subscription  did  not, 
and  it  is  an  original  promise." 

§  225.  The  case  of  Ledloio  v.  Becton,  36  Alabama,  596, 
A.  D.  1860,  presents  another  instance  of  a  promise  con- 
ditional by  implication,  which  was  sustained  as  original, 
for  the  same  reasons  which  would  have  sustained  it,  had 
it  been  expressly  made  conditional.  There  the  defendant 
was  a  widow,  who,  before  administration  of  her  husband' s 
estate  was  granted,  requested  the  plaintiff  to  let  a  man 
employed  in  the  business  of  the  estate  have  some  goods, 
and  promised  that  the  estate  would  pay  for  them ;  and 
they  were  furnished  accordingly  and  charged  to  the  estate 
upon  the  plaintiff' s  books  ;  but,  as  the  bill  of  exceptions 
stated,  "  for  convenience  merely."  A  bill  of  items,  charg- 
ing the  goods  to  the  estate,  was  also  made  out  by  the 
plaintiff,  and  presented  to  the  administrator  when  he  was 
subsequently  appointed  ;  and  he  refused  to  pay  it.  The 
jury  having  found  a  verdict  for  the  plaintiff,  it  was 
held,  on  error  by  the  Supreme  Court,  that  inasmuch 
as  the  estate  was  not  liable  for  the  goods,  the  vddow's 
promise  was  not  within  the  statute,  and  that  she  was 
accordingly  liable  for  their  value.  So  the  judgment  was 
afl5rmed.(c?) 

(d)  See  also  chapter  viii,  article  ii,  for  cases  involving  similar  principles, 
and  Lane  v.  Burghanf,  6  Jurist,  126,  cited  in  §  280. 
36 


CHAPTER    EIGHTH. 

THE  SAME  SUBJECT  CONTINUED  —  CASES  WHERE  THE  INTER 
POSITION  OF  OTHER  LEGAL  PRINCIPLES  HAS  BEEN  SUP- 
POSED TO  CREATE  EXCEPTIONS  TO,  OR  QUALIFICATIONS 
OF  THE  THIRD   RULE. 

§  226.  Besides  the  cases  abstracted  or  referred  to  in  the 
preceding  pages,  where  a  doubt,  respecting  the  result  of  a 
correct  application  of  the  third  rule,  arises  upon  some 
peculiarity  of  the  case  itself,  or  of  the  class  to  which  it 
belongs,  there  are  certain  groups  or  classes,  apparently 
governed  by  other  legal  principles  conflicting  with  the 
rule,  and  raising  questions  whether  they  should  not  be 
excluded  altogether  from  its  operation.  These  will  be 
examined  in  detail  in  the  course  of  this  chapter,  for  the 
purpose  of  ascertaining  how  far  the  rule  admits  of  excep- 
tions and  qualifications. 

AETICLE  I. 

Where  the  person  benefited  hy  the  transaction,  and  the  person  who  came  in  aid  of  his  orediti 
assumed  a  joint  liability  to  the  promisee. 

§  227.  It  is  hardly  necessary  to  say,  that  where  the 
property,  money,  or  labor,  forming  the  consideration  of 
the  promise,  is  procured  for  the  benefit  of  two  or  more 
promisors,  in  furtherance  of  an  object  in  which  they  are 
jointly  interested,  they  are  regarded  as  one  party  to  the 
contract ;  and  although  one  of  them  may  take  the  lead  in 
the  preliminary  negotiations,  and  the  consummation  of 
the  transaction,  the  promise  of  the  others  to  respond  Is 
not  a  collateral  undertaking  for  the  debt  of  the  first,  but 
an  original  undertaking  in  their  own  behalf  for  their  own 
debt,  which  is  unaffected  by  the  statute  of  frauds.  Indeed, 
in  such  a  case,  the  other  parties  in  interest  would  gen- 
erally be  liable,  without  an  express  promise. 

§  228.  Nor  will  the  result  be  varied,  if  one  of  the  par- 
ties gives  his  separate  engagement  to  pay,  provided  the 


Art.  1.]  Collateral  Undertakings.  283 

same  is  not  received  in  discharge  of  the  joint  liability. 
This  is  illustrated  by  the  case  of  HotchJciss  v.  Ladd  and 
Warner,  36  Vermont,  593,  A.  D.  1864.  Tliere  the  question 
was  whether  the  declaration  was  sufficient  upon  demurrer. 
The  court  construed  it  to  mean  that  the  defendants,  being 
in  partnership  together,  and  desiring  to  purchase  goods 
for  their  joint  benefit  from  the  plaintiff's  firm,  agreed  with 
the  plaintiff  that  the  sale  should  be  made  by  the  plaintiff 
to  the  defendants  jointly,  and  that  the  plaintiff  should 
take  notes  of  the  defendant  Warner  alone,  as  security 
merely,  and  not  as  payment ;  whereupon  the  goods  were 
delivered  to  the  defendants  jointly,  upon  their  joint 
promise  to  pay  for  them  as  specified  in  Warner' s  notes. 
And  upon  this  construction  of  the  declaration  the  court 
held  that  "it  was  a  clear  case  of  an  original  undertaking 
by  Ladd,  and  upon  the  most  ample  consideration."  But 
cases  of  this  kind  belong  more  properly  to  the  law  of 
partnership. 

§  229.  Nor  would  it  probably  be  serio'usly  contended, 
that  the  statute  applies  to  a  case  where  two  or  more  per- 
sons incur  a  joint  liability,  upon  a  consideration  which 
enures  exclusively  to  the  benefit  of  one  of  them,  if  they 
acted  jointly  in  the  whole  transaction,  and  there  is  nothing 
to  show  that  the  promisee  had  notice  that  the  contract 
was  not  made  for,  and  the  consideration  did  not  enure  to 
the  benefit  of  all.  {a)  For  obviously  the  liabilities  of  the 
parties  cannot  be  marshalled  into  primary  and  auxiliary 
obligations,  to  the  prejudice  of  a  person  who  has  dealt 
with  them  in  ignorance  of  any  fact,  out  of  which  the  law 
would  raise  a  distinction  between  the  different  liabilities. 

§  230.  But  there  is  a  grave  question,  whether  the  statute 
is  applicable  to  a  case,  where  although  the  whole  trans- 
action proceeds  upon  the  distinct  understanding,  tliat  one 
of  the  two  promisors  has  no  direct  interest  in  1he  con- 
sideration of  the  promise,  and  that  he  assumes  a  liability 

(a)  Fell  on  Guaranty  and  Suretyship,  32,  citing  Waugh  v.  Carve:,  2  Henry 
Blackstone,  235. 


284  Collateral  Undertakings.        [Ch...  viii. 

entirely  for  the  benefit  and  accommodation  of  the  other, 
and  in  aid  of  his  credit ;  yet  the  promise  is  made  joint  by 
its  terms,  or  else  the  circumstances  are  such,  that  the  law 
would  generally  imply,  that  it  was  the  intention  of  the 
promisors  to  assume  a  joint  liability.  There  is  respectable 
authority  for  the  opinion,  that  in  all  such  cases  the  prom- 
isee can  proceed  against  both  the  promisors  as  joint 
debtors,  and  hold  them  liable  without  any  writing.  In 
Hetjield  v.  Dow,  3  Dutcher  (New  Jersey),  440,  A.  D.  1859, 
the  Chief  Justice  illustrated  the  general  rule  respecting 
the  giving  of  credit  to  the  third  person  as  follows  :  "  If  A 
purchase  goods  to  be  delivered  to  B,  or  promise  to  pay 
for  goods  that  maybe  purchased  and  received  byB,(5) 
the  promise  of  A  is  clearly  an  original  contract,  an  engage- 
ment to  pay  his  own  debt  and  not  the  debt  of  B.  So,  if  A 
and  B  jointly  promise  to  pay  for  goods  delivered  to  B,  A 
and  B  are  joint  original  debtors ;  it  is  a  joint  promise  to 
pay  the  indebtedness  of  A  and  B,  not  a  promise  to  pay 
the  debt  of  B.  Such  a  promise  is  not  within  the  statute." 
The  case,  however,  did  not  call  for  this  remark,  it  being 
in  fact  an  action  against  one  person  alone,  whose  under- 
taking was  construed  upon  the  evidence  to  be  merely 
collateral,  and  no  such  point  having  been  taken  on  the 
trial.  A  doubt  respecting  the  application  of  the  statute, 
in  cases  where  the  promise  is  joint,  was  also  suggested  in 
the  course  of  the  remarks  of  the  court  in  Bronson  v. 
Stroud,  2  McMuUan  (South  Carolina),  372,  A.  D.  1842 ; 
Boykln  v.  Dolilonde,  1  Alabama  Select  Cases,  502,  A.  D, 
1861 ;  and  Smift  v.  Pierce,  95  Massachusetts  (13  Allen), 
136,  A.  D.  1866,  though  in  neither  case  was  any  definite 
opinion  upon  the  point  either  called  for  or  expressed. 

§  231.  But  there  are  three  reported  cases,  one  in  England 
and  two  in  the  United  States,  where  the  question  came 
directly  before  the  court,  whether  the  statute  applies  to  a 
joint  undertaking,  into  which  one  of  the  joint  parties 


(b)  But  see  Cutler  v.  Hinton,  and  other  cases  in  chapter  vii,  article  ii,  as 
to  the  effect  of  the  word  "purchase,"  and  others  of  similar  meaning. 


Art.  I.]  Collateral  Undertakings.  285 

entered,  with  the  full  knowledge  of  the  promisee  that  the 
consideration  would  enure  exclusively  to  the  benefit  of 
the  other ;  and  in  each  case  it  was  held  that  the  particular 
promise  before  the  Court  was  good  without  writing.  We 
will  carefully  analyze  these  cases,  in  order  to  ascertain 
whether  they  can  be  sustained  upon  principle ;  and  if  so, 
what  is  the  nature  of  the  exception  to  the  general  rule 
which  they  establish,  (c) 

§  232.  The  first  of  these  is  the  English  case  of  Sclioles 
and  another  v.  Hampson  and  Merriott,  tried  before 
Chambre,  J.,  at  the  Lancaster  Assizes,  A.  D.  1806,  and 
reported  in  Fell  on  Gruaranty  and  Suretyship,  33,  from 
notes  taken  by  the  author  himself,  in  the  following  words  : 
*'The  defendant  Hampson  had  applied  to  the  plaintiffs,  to 
purchase  from  them  a  quantity  of  cottons  upon  credit ; 
which  they  refused  to  let  him  have,  unless  some  one  would 
be  answerable  for  the  payment.  He  afterwards  brought 
with  him  the  other  defendant,  who  was  a  near  relation  of 
his,  but  not  at  all  connected  with  him  in  business,  and  which 
was  well  known  to  the  plaintiffs.  The  defendant  Merriott 
then  requested  the  plaintiffs  to  let  Hampson  have  what 
cotton  he  might  want,  and  agreed,  verbally,  that  the 
credit  should  be  given  to  them  jointly,  and  the  invoices 
made  out  in  their  joint  nam$s.  Several  parcels  of  cotton 
were  accordingly  delivered  by  the  plaintiffs  to  Hampson, 
who,  from  time  to  time,  made  payments  for  the  same. 
But  becoming  insolvent,  this  action  was  brought  against 
him  and  Merriott,  for  the  balance.  Hampson  had  let  judg- 
ment go  by  default,  and  the  question  was  as  to  the  liabil- 
ity of  Merriott.  It  was  objected  on  his  behalf,  that  upon 
these  facts,  Merriott  could  not  be  considered  as  a  partner, 
but  was  only  surety  for  Hampson' s  payments  ;  and  there- 

(c)  In  the  enumeration  of  the  cases  bearing  upon  this  question,  we  lay  out 
of  view  Durham  v.  Manrow,  2  New  York,  533,  because  there  tlie  court  gave 
no  authoritative  decision  upon  this  point,  although  it  came  directly  in  question. 
Still  the  weight  of  the  case,  especially  with  the  explanation  of  the  views  of 
Bronson,  J.,  in  2  New  York,  229,  230,  is  against  tiie  validity  of  the  verbal 
undertaking  of  the  joint  promisor,  who  comes  in  aid  of  the  other's  credit. 


286  Collateral  Undeetakings.        [Ch.  viii. 

fore  his  undertaking  was  for  the  debt  of  another,  and  void 
by  the  statute  of  frauds  as  not  being  in  writing ;  and  it  was 
contended  that  the  permitting  such  parol  promise  to  avail, 
would  be  virtually  to  repeal  the  statute.  But  Chambre, 
J.,  overruled  the  objection,  not  thinking  this  to  be  a  case 
within  the  statute,  and  the  decision  was  never  afterwards 
questioned."  In  this  case,  it  will  be  noticed,  not  only 
was  the  defendants'  undertaking  expressly  made  joint  by 
its  terms,  but  the  parties  carefully  provided  that  the  sale 
should  be  made  to  the  defendants  jointly,  which  may  well 
have  been  regarded  as  superceding  entirely  the  original 
negotiation  contemplating  a  purchase  by  Hampson  alone, 
and  the  procurement  of  some  other  person  to  become  a 
guarantor  for  him. 

§  233.  But  in  the  subsequent  American  case  of  R.  and 
J.  WainwrigJit  v.  Straw  and  Cunningham,  15  Vermont, 
215,  decided  in  1843,  the  word  "joint"  did  not  appear  to 
have  been  used  by  the  promisors,  in  the  verbal  promise 
upon  which  the  action  was  founded ;  and  the  character,  in 
which  they  incurred  their  respective  liabilities,  was  matter 
of  inference  merely ;  although  the  contract  appears  to 
have  been  accepted  as  a  joint  undertaking.  There  the 
first  and  second  counts  of  the  declaration  relied  upon  an 
instrument,  therein  called  a  note  of  hand,  whereby  the 
defendants,  jointly  and  severally,  promised  to  pay  a  ceiv 
tain  sum  in  chattels.  The  court  held  this  instrument  to 
be  void,  for  uncertainty,  because  the  time  for  payment 
was  left  blank,  and  there  was  a  misdescription  of  the 
payees ;  but  the  declaration  contained  also  a  count  for 
goods  sold  and  delivered.  At  the  trial,  the  agent  of  the 
plaintiffs  testified  that  both  defendants  "came  to  him  and 
said  they  wished  to  buy  a  stove  for  Straw,  but  that  both 
would  be  responsible  to  R.  and  J.  Wainwright  for  the 
pay ;  that  it  was  upon  their  joint  responsibility  that  he 
sold  the  stove ;  that  they  agreed  to  pay  for  the  stove  and 
pipe  which  he  then  sold  them"  in  certain  articles  of  per- 
sonal property  mentioned  by  him,  at  certain  specified 
times,  and  that  the  so-called  note  '■'■was  intended  to  hax)e 


Art.  I.]  Collateral  Undertakings.  287 

been  written  according  to  the  contract.^''  The  cause  was 
tried  by  the  judge  of  the  court  below  without  a  jury,  and 
it  would  seem  from  the  report  that  this  was  all  the  evi- 
dence before  him ;  and  the  plaintiffs  having  recovered 
judgment  upon  the  general  count,  the  question  whether 
the  promise  was  within  the  statute  came  before  the 
Supreme  Court,  upon  exceptions  to  the  admission  of  the 
agent's  testimony,  and  to  the  ruling  that  the  plaintiffs 
could  recover. 

§  234.  It  was  held,  that  inasmuch  as  the  time  for  per- 
formance had  elapsed,  the  special  contract  constituted 
no  objection  to  a  recovery,  under  the  general  count,  of 
the  value  of  the  goods  agreed  to  be  given  for  the  stove ; 
and  upon  the  question  whether  the  statute  applied,  the 
opinion  proceeded  as  follows:  "It  is  also  objected  that 
the  contract,  so  far  as  Cunningham  is  concerned,  is  within 
the  statute  of  frauds.  To  bring  a  case  within  the  statute 
of  frauds,  it  is  necessary  that  the  promise  should  be 
'  collateral  to,  and  in  aid  of,  the  promise  of  another.  But 
in  the  present  instance,  the  promise  of  the  defendants  is 
joint.  They  both  made  the  purchase,  and  upon  their 
joint  responsibility."  We  add  what  was  said  upon  the 
question  whether  Cunningham  was  a  surety,  as  it  depends 
upon  the  same  principle.  "It  is  also  said  that  the  gen- 
eral action  will  not  lie  against  Cunningham,  as  he  stands 
but  a  surety  for  Straw.  If  such  was  the  relation  of  the 
parties,  there  would  be  weight  in  the  objection.  But  such 
is  not  the  case.  To  create  this  relation,  the  sale  should 
have  been  made  to  Straw  alone.  The  fact  that  it  might 
have  been  for  the  individual  use  of  Straw  is  not  sufficient 
to  create  the  relation  of  principal  and  surety."  The  opin- 
ion does  not  specify  any  reasons  why  the  defendants'  con- 
tract to  pay  was  construed  to  be  joint.  Undoubtedly  it 
was  so  construed,  under  the  rule,  that  in  the  absence  of 
any  thing  showing  a  contrary  intention,  the  law  presumes 
a  contract,  creating  the  same  liability,  entered  into  by  two 
or  more  persons  simultaneously,  and  upon  the  same  con- 


288  COLLATEEAL   UNDERTAKINGS.  [Ch.  VIII. 

sideration,  to  be  joint.  (^Z)  But  although  the  so-called 
note  was  void  as  a  contract,  by  reason  of  the  uncertainty 
respecting  the  payees  and  the  subject-matter,  it  may  have 
been  regarded  as  sufficient  evidence,  in  connection  with 
the  testimony  of  the  plaintiffs'  agent,  that  whatever  lia- 
bility was  assumed  by  the  defendants  was  intended  to  be 
joint  and  several,  (e) 

§  235.  But  in  the  recent  case  of  Gibhs  v.  BlancTiard,  15 
Michigan,  292,  decided  A.  D.  1867,  the  majority  of  the 
court  distinctly  laid  down  the  rule  that  a  joint  promise  is 
out  of  the  statute,  notwithstanding  that  the  consideration 
moved  directly  from  the  promisee  to  one  of  the  promisors. 


(d)  See  1  Parsons  on  Contracts,  fifth  edition,  pp.  11,  et  seq. 

(e)  A  case  where  the  action  was  evidently  founded  upon  the  decision  in 
Wainwright  v.  Straw,  which  was  cited  for  the  plaintiffs  upon  the  argument, 
is  to  be  found  reported  in  79  Massachusetts  (13  Gray),  613,  A.  D.  1859, 
under  the  title  of  Stone  v.  Walker.  The  plaintiffs  were  lawyers,  and  brought 
an  action  against  Comfort  M.  Walker  and  Benjamin  Walker,  to  recover 
for  their  services  in  defending  the  former  upon  a  criminal  charge ;  insisting 
that  the  two  defendtmts  engaged  the  plaintiffs  jointly,  and  that  the  services 
were  rendered  upon  their  joint  credit.  C.  M.  Walker  was  defaulted,  and 
B.  Walker  alone  defended  the  action.  At  the  trial,  it  was  proved  on  the 
part  of  the  plaintiffs,  that  the  two  defendants  came  together  to  one  of  the 
plaintiffs,  and  that  B.  Walker  said :  "  We  want  you  to  go  to  Southbridge 
and  take  care  of  this  case;  they  are  abusing  Comfort,  and  I  mean  to  stand 
by  him  ;  I  mean  to  assist  him."  The  evidence  was  very  conflicting,  and  the 
judge  seems  to  have  taken  refuge  in  the  obscurity  of  his  charge  ;  for  he 
instructed  the  jury  that  as  the  services  were  to  be  rendered  for  the  benefit 
of  C.  M.  Walker,  the  other  defendant  would  not  be  liable  unless  they  found 
that  he  made  "  an  original  express  promise  "  to  pay  for  them.  Upon  this 
charge  the  jury  found  a  verdict  for  the  defendants;  and  upon  the  hearing 
of  the  exceptions,  the  plaintiffs'  counsel  contended,  that  inasmuch  as  the 
promise  was  not  within  the  statute,  if  the  defendants  assumed  a  joint  lia- 
bility, the  question  was,  not  whether  B.  Walker  promised  to  pay  the 
plaintiffs,  but  whether  he  employed  them.  But  Shaw,  C.  J.,  in  his  opinion, 
baid  that  it  was  for  the  jury  to  decide,  whether  B.  Walker's  promise  was 
original  or  collateral,  and  that  without  an  express  promise  he  would  not  be 
hable  for  services  rendered  to  C.  M.  Walker;  and  the  exceptions  were  over- 
ruled. The  case  is  therefore  no  direct  authority  upon  either  side  of  this  que,'>- 
tion. 


Art.  I.]  Collateral  Undertakings.  289 

There  the  declaration  contained  a  special  count,  to  the 
effect  that  the  defendants  in  the  court  below  (Daily  and 
Gibbs),  in  consideration  of  the  sale  of  a  horse  by  the 
plaintiff  to  Daily,  agreed  to  deliver  to  the  plaintiff  their 
note  for  $60,  payable  in  six  months  to  the  plaintiff  or 
bearer ;  that  the  horse  was  delivered  to  Daily ;  but  that 
the  defendants  had  refused  either  to  give  their  note,  or  to 
pay  for  the  horse ;  to  which  were  added  the  common 
counts  for  goods  sold  and  delivered.  At  the  trial  it 
appeared  that  Gibbs  and  Daily  called  together  upon  the 
plaintiff  ' '  and  Gibbs  asked  the  plaintiff  if  he  wanted  to 
sell  his  mare ;  plaintiff  said  he  did ;  Gibbs  inquired  the 
price,  and  being  told  sixty  dollars,  wanted  to  know  if 
the  plaintiff  would  take  Daily's  note,  if  he,  Gibbs, 
would  sign  it,  and  see  it  paid;"  the  plaintiff  assented; 
but  Gibbs  being  anxious  to  return  home,  it  was  agreed 
that  Daily  should  go  with  the  plaintiff  and  see  the  mare, 
and  if  she  suited  him,  he  might  take  her  away  and  give 
his  note,  and  the  first  time  Gibbs  went  to  town,  he  would 
sign  it.  Daily  accordingly  took  the  mare  and  signed  a 
note  for  $60  at  six  months,  which  Gibbs  subsequently 
indorsed,  but  as  the  indorsement  was  made  on  Sunday,  it 
^vas  void  under  the  Michigan  statute.  The  note  was 
tendered  to  the  defendants  at  the  trial.  The  report  does  not 
expressly  state  that  the  note  was  not  pa^^able  to  the  order 
of  Gibbs,  or  that  it  was  in  the  hands  of  the  plaintiff  when 
Gibbs  indorsed  it ;  but  both  these  facts  are  to  be  inferred 
from  the  abstract  of  the  argument  of  the  counsel. 

§  236.  The  judge  charged  the  jury,  upon  the  question 
of  joint  liability,  that  if  the  understanding  of  the  parties 
was  "that  Gibbs  and  Daily  were  the  buyers  of  the  mare, 
and  that  both  were  to  be  liable  as  purchasers  for  the 
purchase  price,  and  accordingly  should  become  joint 
makers  of  a  promissory  note  for  its  payment,  though 
Daily  was  less  relied  upon  by  the  plaintiff  than  Gibbs, 
and  though  in  point  of  fact  it  was  understood  that  the 
mare  when  bought  should  belong  to  Daily,  the  plaintiff  is 
entitled  to  recover ;  that  the  principle  in  this  class  of  cases 
37 


290  Collateral  Undertakings.        [Ch.  viii. 

is,  that  if  the  agreement  be  such  that  two  persons,  in  the 
purchase  of  goods,  do  at  the  same  time  become  co-debtors 
to  the  seller  for  the  price,  then  both  are  purchasers  ;  and 
the  case  is  not  within  the  statute  of  frauds,  and  no  memo- 
randum in  writing  is  necessary."  The  jury  found  a  ver- 
dict for  the  plaintiff,  and  the  judgment  thereon  was 
affirmed  by  the  Supreme  Court,  Christiancy,  J.,  deliver- 
ing the  prevailing  opinion,  and  saying  that  the  charge 
"was  not  only  correct,  but  that  it  expres-ses  the  true  rule 
of  law  applicable  to  the  question  with  remarkable  clear- 
ness." This  conclusion  the  learned  judge  supported  in 
an  argument  of  considerable  length,  the  substantial  effect 
of  which  is  to  hold  that  whenever  there  is  a  sale  upon  the 
joint  credit  of  two  persons,  the  statute  does  not  apply,  as  in 
that  case  the  sale  is  deemed  to  have  been  to  the  persons 
to  whom  credit  was  given,  and  the  plaintiff  is  entitled  to 
recover  as  upon  a  sale  to  both  jointly. (/) 


(/)  The  learned  judge  began  by  saying  that  the  language  of  the  statute 
indicates  that  the  class  of  promises  required  to  be  in  writing,  includes  only 
those  which  are  secondary  or  collateral  to,  or  in  aid  of  the  undertaking  or 
liability  of  some  other  person,  whose  obligation,  as  between  the  promisor 
and  the  promisee,  is  original  and  primary.  Consequently  it  applies  only  to 
those  which,  if  valid,  would  create  a  liability  on  the  part  of  the  promisor, 
distinct  and  several  from  that  of  the  person  in  whose  behalf  it  is  made,  and 
not  a  joint  liability  with  him.  For  if  the  obligation  of  the  two  is  joint, 
neither  is  collateral  to  the  other,  and  the  joint  promise  is  original  as  to  both. 
To  say  that  both  cannot  become  jointly  liable  upon  a  joint  promise,  not  in 
writing,  to  pay  for  goods  purchased  for  and  delivered  to  one  of  them,  is  but 
another  form  of  declaring  that  it  is  not  competent  for  both  to  become  origi- 
nal promisors,  as  between  them  and  the  promisee,  unless  each  is  under  an 
equal  obligation,  as  between  themselves,  for  the  ultimate  payment  of  the 
debt.  Such  a  proposition  cannot  be  maintained  upon  principle  or  authority; 
and  to  allow  the  relation  between  the  promisors  to  be  shown,  for  the  pur- 
pose of  defeating  a  promise  which  both  promisors  made  as  original,  would 
operate  as  a  fraud  upon  the  vendor.  Passing  to  the  consideration  of  Wain- 
wright  V.  Straw,  the  learned  judge  remarked,  that  the  decision  was  placed  in 
part  upon  the  ground  that  the  sale  was  made  to  both.  "Now,"  said  he,  "I 
can  see  no  difference  in  legal  effect,  between  the  case  where  A  and  B  say  to 
a  merchant,  '  We  want  to  buy  a  stove  for  B,  and  both  of  us  will  be  responsi- 
ble,' and  the  case  where  A  says,  'B  wishes  to  purchase  a  stove,  but  we  will 
both  be  responsible.'  "     In  each  case  it  is  a  sale  for  the  benefit  of  one  on  the 


Art.  I.]  Collateral  Undertakings.  291 

§  237.  On  the  other  hand,  tliere  is  some  authority 
for  the  contrary  doctrine,  namely,  that  a  joint  promise  is 
within  the  statute,  where  the  consideration  moved  exclu- 
sively to  one  of  the  promisors.  This  appears  to 
have  been  assumed  to  be  law  in  Wallace  v.  Wortham, 
25  Mississippi,  119,  A.  B.  1852,  although  there  was  no 
direct  ruling  upon  the  point.  The  case  being  meagerly 
reported,  we  are  unable  to  ascertain  whether  the  facts 
properly  raised  any  question  connected  with  the  present 
inquiry. 

§  238.  But  in  a  Tennessee  case,  Matthews  v.  Milton, 
4  Yerger,  576,  decided  A.  D.  1833,  an  opinion,  directly 
contrary  to  the  ruling  in  Gibhs  v.  Blanchard^  was  deliv- 
ered by  Chief  Justice  Catron,  afterwards  an  associate 
justice  of  the  United  States  Supreme  Court.     There  the 

joint  credit  of  two,  and  the  real  question  is,  whether  the  credit  was  given  to 
both  jointly.  Wherefore  he  thought  that  the  decision  in  Wainwright  v. 
Straw,  notwithstanding  that  the  opinion  assigns,  as  the  reason  for  holding 
the  defendants  liable,  that  the  sale  was  made  to  both,  was  really  put  upon 
the  broad  ground  that  the  sale  was  upon  the  joint  credit  of  the  defendants; 
and  he  added  that  in  all  cases  where  the  sale  is  upon  the  joint  credit  and 
promise  of  the  defendants,  although  the  property  is  purchased  for  and  deliv- 
ered to  but  one  of  them,  the  legal  effect  of  the  transaction  constitutes  it  a 
sale  to  the  two  jointly,  the  sale  being  to  the  person  or  persons  to  whom 
credit  was  given.  For  these  reasons,  he  held  that  the  plaintiff  was  entitled 
to  recover  upon  the  count  for  goods  sold  and  delivered  to  the  defeiulants, 
but  not  upon  the  special  count,  for  that  alleged  a  sale  to  Daily  alone.  The 
term  of  credit  having  expired,  there  was  no  objection  to  a  recovery  upon  a 
common  count,  notwithstanding  the  special  contract.  With  this  opinion, 
one  of  the  other  two  judges  fully  concurred  ;  but  Campbell,  J.,  Avhile  con- 
curring in  the  result,  said,  that  upon  the  whole  he  regarded  the  charge  as 
having  fairly  presented  the  question,  whether  there  was  or  was  not  a  con- 
tract of  suretyship,  and  for  that  reason  there  was  no  error  in  it,  although  he 
had  had  some  doubt  whether  some  of  the  rulings  were  not  open  to  the 
objection,  that  they  rested  too  much  upon  the  question  of  a  joint  obligation. 
"I  cannot,"  he  said,  "regard  the  mere  form  of  the  liability  (as  joint  or 
several)  as  having  any  bearing  on  the  applicability  of  the  statute,  inasmuch 
as  sureties  very  generally  assume  joint  obligations  with  their  principals,  and 
are  nevertheless  protected  in  all  the  rights  of  suretyship,  and  vested  with  all 
its  immunities." 


292  COLLATEEAL   UNDERTAKINGS.  [Ch.  VIII. 

action  was  brought  against  the  auxiliary  promisor  alone, 
under  an  act  passed  in  1789,  which  permits  several  actions 
to  be  brought  against  persons  jointly  liable. (^)  Upon  the 
trial  it  appeared  that  the  defendant  (Philip  Milton)  and 
his  brother  William  were  together  in  the  plaintiffs'  store, 
and  the  defendant  said  to  the  plaintiffs,  that  whatever 
goods  William  "took  up"  in  the  store,  he,  the  defendant, 
would  pay  for  out  of  a  cotton  contract,  which  the  plaint- 
iffs and  the  defendant  were  about  to  make ;  the  goods 
were  thereupon,  and  on  the  same  day,  delivered  to  Wil- 
liam, and  debited  to  William  and  the  defendant  jointly. 
It  was  also  proved  that  before  the  defendant's  promise, 
the  plaintiffs  had  told  their  clerk  not  to  credit  William, 
but  subsequently  William  purchased,  on  credit,  other 
goods  at  the  plaintiffs'  store,  which  were  debited  to  him 
individually,  and  which  were  not  in  question  in  this 
action. 

§  239.  The  judge  charged  the  jury,  in  substance,  that 
if  William  was  ever  liable  for  the  account,  the  defendant 
was  not  liable,  and  that  charging  the  account  to  both  was 
strong,  though  not  conclusive  evidence,  that  credit  was 
given  to  William ;  but  if  they  found  that  credit  was  given 
exclusively  to  the  defendant,  then  he  would  be  liable. 
A  verdict  having  been  rendered  for  the  defendant,  the 
plaintiffs  brought  error,  upon  exceptions  to  this  and  other 
parts  of  the  charge.  The  Chief  Justice  construed  the 
charge  as  follows:  "The  circuit  judge  charged  the  jury, 
that  if  there  was  no  liability  resting  on  William,  and  the 
credit  was  extended  to  Philip  alone,  then  the  promise  was 

(g)  Carutliers  and  Nicholson's  Compilation  of  the  Laws  of  Tennessee, 
pa.ije  415.  The  learned  jiidge  who  delivered  the  opinion  in  Gibbsv.  Blanch- 
ard,  treated  as  obiter  all  that  was  said  in  Matthews  v.  Milton  upon  the  ques- 
tion of  the  promisors'  joint  liability,  saying  that  there  was  no  evidence  tend- 
ing to  prove  a  joint  promise.  The  report  would  indicate  that  the  promise 
was  to  pay  out  of  a  particular  fund,  not  then  in  existence ;  but  as  this  is 
inconsistent  with  the  Avhole  opinion,  which  assumes  that  the  credit  was 
given  to  both  brothers  jointly,  it  is  probably  erroneous  in  tiiat  particular. 
In  all  other  respects,  the  whole  transaction  was  not  distinguishable,  upon 
any  substantial  ground  of  difference,  from  that  in  Gibbs  v.  Blanchard. 


Art.  I.]  Collateral  Undertakings.  293 

original,  and  without  the  statute;  but  if  AVilliam  and 
Philip  were  jointly  trusted,  and  both  held  responsible, 
and  so  charged  on  the  books  of  the  plaintiffs,  then  the 
promise  was  collateral  on  the  part  of  Philip,  because  he 
undertook  to  pay  the  debt  of  William."  He  proceeded: 
"That  the  goods  were  advanced  upon  the  joint  credit  of 
both  is  evident.  They  stand  so  charged  on  the  books, 
and  these  were  given  in  evidence  for  the  plaintiffs  for 
some  of  the  articles,  on  the  oath  of  one  of  the  plaintiffs, 
under  the  book  debt  law."  Then  after  quoting  the  Ten- 
nessee statute  of  frauds,  and  overruling  the  point  that  if 
the  promise  was  made  before  the  debt  was  contracted  the 
statute  does  not  apply,  he  added :  "If  William  was  bound 
to  pay  for  the  goods,  it  was  his  debt ;  Philip  could  not  be 
bound,  unless  in  writing.  It  follows  they  could  not  be 
jointly  charged."  The  learned  Chief  Justice  then  cited 
with  approbation  the  rule  laid  down  in  Matson  v. 
Wharam;  and  added  that  it  accords  with  the  intention 
of  the  legislature,  which  was  that  no  one  should  be  bound 
to  pay  for  property  received  by  another,  unless  the  delib- 
eration of  a  written  agreement  had  intervened,  and  "that  a 
naked  promise  could  be  easily  proved,  and  not  possibly 
disproved,  in  most  instances,  and  therefore  should  only  be 
established  by  written  evidence."  Accordingly  the  judg- 
ment was  affirmed. 

§  240.  In  Hill  v.  Doughty,  11  Iredell  (North  Carolina), 
195,  decided  A.  D.  1850,  the  question  was  whether  a  joint 
promise  of  two  persons  to  pay  the  several  precedent  debts 
of  the  promisors,  founded  upon  a  consideration  moving  to 
both,  was  within  the  statute.  The  principles  applicable 
to  the  validity  of  such  a  promise,  and  of  one  growing  out 
of  a  new  transaction  are  not  in  all  respects  identical ;  but 
they  are  sufficiently  similar  to  render  the  case  a  very 
pertinent  authority  upon  this  inquiry.  The  action  was 
against  two  defendants  to  recover  upon  a  promise  to  pay 
a  debt  due  by  their  father,  they  having  received  their  dis- 
tributive shares  from  his  estate.  There  was  a  third  child, 
(a  daughter),  who  was  not  a  party.     It  appeared  that  the 


294  Collateral  Undertakings.         [CIl.  viii. 

two  defendants  made  the  promise  in  •consideration  of  for- 
bearance, the  creditor  threatening  to  institute  proceedings 
to  compel  them  to  refund  what  they  had  received,  or 
enough  to  pay  his  debt.  In  the  court  below,  the  plaintiff 
had  judgment  upon  a  case  stating  the  facts,  and  the 
defendant  appealed  to  the  Supreme  Court. 

§  241.  Ruffln,  C.  J.,  who  delivered  the  opinion,  after 
briefly  adverting  to,  without  deciding  the  question,  whether 
there  was  a  sufficient  consideration  for  the  promise,  said 
that  if  that  point  be  assumed  for  the  plaintiff,  it  will  not 
follow  that  this  verbal  promise,  by  two  of  the  next  of 
kin,  will  maintain  this  joint  action  against  them.  He 
added:  "Now  the  liability  to  creditors,  of  the  defend- 
ants and  their  sister,  as  next  of  kin,  was  not  joint ;  but 
arose,  if  at  all,  by  reason  of  that  portion  of  the  assets 
of  their  father,  which  came  to  their  respective  hands, 
as  their  several  shares  of  the  estate.  Each  was  there- 
fore liable  only  for  an  equal  proportion  of  the  money ; 
at  all  events  in  the  first  instance,  and  while  the  others 
were  able  to  pay  their  parts,  which  is  not  questioned 
here.  Hence,  it  is  obvious,  if  one  of  the  defendants  had 
verbally  promised  to  pay  the  whole  of  this  demand, 
that  the  promise  would  not  have  been  binding  under  the 
statute  of  frauds,  beyond  his  own  one-third ;  for  beyond 
that  the  liability  was  not  his  own,  but  that  of  another.  It 
seems  clear  that  an  undertaking  by  the  defendants,  in  a 
joint  form,  to  pay  the  whole  debt,  cannot  alter  the  rule  of 
law,  or  the  legal  effect  of  the  promise  as  to  each,  in  that 
respect.  For  if  two  persons  owe  another  separate  debts, 
their  joint  oral  promise  to  pay  both  debts,  cannot  sustain 
a  joint  action  ;  since  it  is  a  promise  by  each  to  answer  for 
another  in  respect  to  all  but  his  own  original  debt.  Per 
curiam.     Judgment  reversed  and  judgment  of  nonsuit." 

§  242.  These  are,  it  is  believed,  all  the  reported  cases  to 
be  found  upon  either  side  of  the  question.  The  policy 
of  the  statute  clearly  includes  joint  promises,  as  well 
as  several;  for  it  is  as  easy  to  manufacture  evidence, 


Art.  I.]  Collateral  Undertakings.  295 

and  as  difficult  to  detect  perjury,  in  one  case  as  in  the 
other.  Is  there  then  any  thing  in  the  words  of  the  statute 
to  exclude  them,  or  do  other  legal  principles  require  us  to 
do  so  \  The  argument  in  favor  of  the  broad  rule  adopted 
in  Gibhs  v.  Blanchard,  commends  itself  to  the  mind  upon 
first  impressions  ;  but  we  think  that  further  reflection  will 
show  that  it  is  more  specious  than  solid ;  that  there  is 
nothing  in  the  statute  to  justify  the  courts  in  laying  down 
such  a  rule ;  and  that  its  adoption  would  be  a  long  step 
backward  in  the  progress  of  legal  science,  tending  to  the 
unsettlement,  and  the  ultimate  abrogation  of  principles, 
which  have  been  regarded  as  well  settled  for  upwards  of 
a  century. 

§  243.  And  first,  let  us  examine  the  question  upon  prin- 
ciple. The  argument  in  favor  of  excluding  joint  promises 
from  the  statute,  appears  to  rest  entirely  upon  the  imity 
existing  between  the  promise  of  the  person  benefited  by  the 
transaction,  and  that  of  the  other  promisor;  which,  it  is  said, 
is  so  complete  that  neither  can  be  said  to  be  collateral  to 
the  other.  These  premises  may  be  granted,  without  con- 
ceding the  conclusion  that  the  statute  is  inapplicable  to 
the  auxiliary  promise,  thus  united  with  the  other.  For, 
as  we  have  had  occasion  to  remark  before,  the  statute  does 
not  use  either  of  the  terms  "  collateral "  or  "  original ;  "(^) 
and  although  it  is  true  that  all  collateral  promises  are  within 
the  statute,  the  converse  of  the  proposition,  that  all  prom- 
ises within  the  statute  are  collateral,  by  no  means  necessar- 
ily follows.  Nor  can  it  be  said  with  truth,  that  the  language 
of  the  statute,  by  necessary  implication,  calls  for  two  several 
liabilities.  A  "special  promise  to  answer  for  the  debt, 
default  or  miscarriages  of  another,"  may  consist  of  a  joint 
as  well  as  a  several  undertaking,  with  the  person  answered 

(A)  The  complaint,  that  the  use  of  the  word  "  collateral''  has  sometimes  a 
tendency  to  lead  into  error  in  oonstruinp;  the  statute,  is  of  early  date.  Per 
Lord  Mansfield,  C.  J.,  in  Harris  v.  Hunlbach,  1  Burrow,  375.  See  BuUer's 
Nisi  Prius,  281  ;  Roberts  on  Fraud?,  224,  as  well  as  the  remarks  of  Comstock, 
C.  J.,  in  Mallory  v.  Gillett,  ante,  §  50,  and  of  Grover,  J.,  in  Browu  o.  Weber, 
38  New  York,  190. 


296  Collateral  Undertakings.         [Ch.  viii. 

for.  This  will  become  immediately  apparent,  by  applying 
the  words  to  written  promises  of  that  character,  some  of 
which  are  of  constant  occurrence ;  as  for  instance  joint 
bonds,  conditioned  that  one  of  the  obligors  shall  pay  a 
debt  or  faithfully  discharge  the  duties  of  an  office. 

§  244.  Again,  if  the  unity  of  the  promise  suffices  to  take 
it  out  of  the  statute  in  one  case,  it  will  suffice  in  every 
other  ;  consequently  promises  to  answer  for  a  previously 
existing  debt  of  another  are  not  within  the  statute,  pro- 
vided the  debtor  joins  with  the  new  promisor  in  making 
the  promise.  It  is  difficult  therefore  to  discover  where 
the  principle  stops ;  but  a  mere  glance  at  its  necessary 
consequences  suffices  to  show,  that  it  runs  counter  to  cur- 
rents of  authority  in  many  directions  ;  and  that  its  general 
recognition  will  require  the  remodelling  of  other  rules, 
besides  the  one  under  which  it  is  now  being  discussed. 

§  245.  In  truth  it  seems  that  the  importance  given  to 
the  unity  of  a  joint  promise,  proceeds  from  confounding 
that  feature,  with  another  closely  resembling  it,  and 
equally  inherent  to  an  undertaking  of  that  description, 
to  wit,  its  absolute  character.  If  the  question  were  still 
open,  it  would  be  hard  to  answer  the  argument,  that  a 
joint  promise  is  not  within  the  statute,  because  it  imports 
a  direct  and  absolute  undertaking  of  each  promisor  to 
answer  for  himself,  and  not  for  the  other.  But  it  is  too  late 
to  predicate  any  argument  upon  that  characteristic  of  a 
joint  promise,  for  it  may  be  equally  inherent  to  a  several 
promise ;  and,  as  we  have  already  shown,  and  as  the 
argument  uipon  the  other  side  of  the  question  concedes, 
the  rule  is  perfectly  settled  that  a  several  promise,  though 
absolute,  is  within  the  statute,  if  the  person  primarily 
benefited  also  incurred  a  similar  liability.  (^■) 

§  246.  ISText,  let  us  consider  the  argument  ab  inconve- 
nienti,  which  is  very  properly  resorted  to,  where  it  is  diffi- 
cult to  discover,  upon  which  side  lies  the  weight  of  argu- 

(0  See  ante,  §  140. 


Art.  I.]  Collateral  Undertakings.  297 

ment  upon  principle  and  authority.  The  language  of  the 
rule,  as  laid  down  in  Matson  v.  Wharam,{j)  clearly 
includes  joint  promises ;  and  it  has  been  reiterated,  in 
words  to  the  same  effect,  in  all  the  text  books  and  in 
nearly  every  subsequent  case.(/i:).  If,  therefore,  this  class 
of  promises  is  to  be  excluded  from  the  operation  of  the 
statute,  an  exception  must  be  ingrafted  upon  this  ancient 
and  now  universally  recognized  rule.  Moreover,  every 
case  where  the  auxiliary  promise  is  absolute  in  its  terms, 
will  presumptively  constitute  an  exception,  within  the 
principle  adverted  to  in  commenting  upon  Wainwright  v. 
Straw  ;{l)  and  the  effort  to  prove  that  it  was  the  intention 
of  the  parties  in  the  particular  case,  to  assume  several 
liabilities,  will  almost  invariably  fail ;  not  only  on  account 
of  the  difficulty  of  enabling  witnessess  and  jurors,  to 
understand  the  technical  distinction  between  a  joint  and  a 
several  promise ;  but  also  because  it  will  very  rarely  occur, 
that  the  parties  themselves  had  any  knowledge  of  such  a 
distinction.  It  would  seem  therefore  that  the  exception, 
if  once  introduced,  will  end  in  practically  swallowing  up 
most  of  the  rule,  by  confining  it  to  those  cases  where  one 
promise  was  in  terms  conditional  upon  non-fulfilment  of 
the  other. 

§  247.  For  these  reasons,  we  think  that  the  correct  rule, 
with  respect  to  joint  promises,  is  that  they  are  within  the 
Btatute,  under  the  same  circumstances  as  those  which 
are  several.     If  the  consideration  of  the  promise  is  a 


(;■)  Ante,  §  146. 

{k)  As  far  as  we  have  noticed,  there  is  no  case  where  any  exception  to  the 
general  rule  is  hinted  at,  except  those  cited  in  this  article.  The  text 
books  use  language  equally  general.  Mr.  Robert?,  writing  a  century  and  a 
quarter  after  the  statute  was  enacted,  congratulates  himself  that  in  the  effort 
to  determine  what  is  within  the  statute,  "one  anchorage  has  been  gained, 
viz.:  that  the  person  undertaken  for  must  be  or  become  liable  at  the  time 
the  promise  by  the  third  person  is  made,"  (Roberts  on  Frauds,  p.  223),  which 
is  very  nearly  the  language  in  which,  under  the  ruling  in  Gibbs  r.  Blanchard, 
a  promise  without  tiie  statute  would  be  described. 

(0  Ante,  §  234. 
38 


298  Collateral  Undertakings.        [Ch.  viii. 

sale,  or  loan  made,  or  services  rendered  by  the  promisee 
to  one  of  the  promisors,  and  upon  his  credit,  the  promise 
of  the  other  to  respond  for  the  price  is  within  the  stat- 
ute, whether  it  takes  the  form  of  a  joint  or  of  a  several 
undertaking.  But  where  a  sale  or  loan  is  made,  or 
services  are  rendered  to  two  persons  jointly,  as  was 
clearly  the  case  in  Scholes  v.  Hampson,  it  is  a  matter 
of  no  moment,  whether  they  assume  a  joint  liability  for 
the  price,  or  whether  each  undertakes  severally  there- 
for. In  that  case,  the  consideration  of  the  promise  flows 
directly  from  the  promisee  to  both  the  promisors  ;  and  the 
legal  title  to  the  subject  of  the  contract  vests  in  both  of  the 
latter,  immediately  upon  the  consummation  of  the  bar- 
gain. If  one  of  the  promisors  secures  the  entire  benefit 
of  the  transaction  to  himself,  he  does  so  by  virtue  of  an 
arrangement  with  his  co-promisor,  with  which  the  prom- 
isee has  no  concern,  and  over  which  he  exercises  no  con- 
trol ;  amounting  to  a  release,  by  one  of  the  joint  owners  to 
the  other,  of  his  undivided  interest.  Where  the  transac- 
tion is  of  this  character,  it  is  clear  that  each  of  the  prom- 
isors undertakes  for  himself  and  for  his  own  debt,  in 
substance  as  well  as  in  form  ;  and  the  only  difficulty,  if 
for  any  reason  the  promises  are  said  to  be  several,  is  to 
reconcile  that  description  of  promise,  with  the  character 
of  the  purchase.  No  doubt,  in  many  of  the  border  cases, 
it  is  difficult  to  determine  whether  the  sale,  or  loan  was 
made,  or  the  services  were  rendered,  to  one  or  both  of  the 
contracting  parties.  WalnwrightY.  Straio  is  such  a  case. 
But  difficulties  of  that  kind  occur  in  the  application  of 
every  legal  principle  ;  and  in  this  particular  class  of  cases 
precisely  the  same  difficulty  would  present  itself,  if  the 
same  question  arose  in  any  one  of  the  many  other  forms, 
where  such  questions  constantly  arise  ;  for  instance,  if  the 
action  was  against  the  vendor  of  the  chattel  for  a  breach 
of  the  implied  warranty  of  title,  or  of  an  express  war- 
ranty of  quality. 


Art  II.]  Collateral  Undertakings.  299 


ARTICLE  II. 

Wtere  the  person  benefited  and  the  auxiliary  promisor  nndertook  concurrently  to  respond  |  but 
the  person  benefited  was  either  a  married  woman  or  an  infanti 

(1  )  Ob3e7-vations  applicable  to  either  species  of  auxiliary  promise. 

§  248.  We  have  next  to  consider  the  question  whether 
the  fact,  that  the  person  who  primarily  nndertook  to 
respond,  was  under  a  disability  to  enter  into  a  binding 
contract,  necessarily  renders  the  undertaking  of  the  aux- 
iliary promisor  original.  It  arises  where  an  infant,  not 
contracting  for  necessaries,  or  a  married  woman,  not 
acting  within  the  limited  sphere  in  which  her  contract 
binds  her  estate  in  equity,  or  under  circumstances  where 
the  local  statutory  provisions  allow  her  to  make  general 
contracts,  nevertheless  assumes  a  liability,  and  receives 
credit  for  goods,  etc.,  and  another  person  enters  into  a 
concurrent  promise  to  respond  for  the  price.  In  such  a 
case,  will  the  latter' s  promise  be  regarded  as  an  original 
undertaking,  or  as  a  special  promise  to  answer  for  the 
debt  or  default  of  another  ?  This  question  is  not  free  from 
difficulty  ;  and  although  the  text-books  seem  to  agree  that 
in  both  the  cases  suggested,  the  promise  of  the  person  not 
benefited  by  the  transaction  will  be  regarded  as  original, 
the  principle  upon  which  the  doctrine  is  maintained, 
especially  in  the  case  of  an  infant's  contract,  is  by  no 
means  clear ;  and  the  authorities  do  not  sustain  the  confi- 
dent opinions  of  the  text- writers,  (a) 

(a)  We  append  some  ertracts,  showing  a  remarkable  unanimity  of  opinion 
among  the  leading  elementary  writers  on  this  subject,  premising  that  every 
case  cited  is  abstracted,  or  otherwise  sufficiently  noticed,  either  in  this  note 
or  in  the  text.  A  reference  to  the  cases  will  show  how  little  justification 
they  contain  for  so  much  confidence  of  opinion.  In  Chitty  on  Contracts 
(8th  edition),  p.  482.  it  is  said:  "If  the  third  party  be  not  by  law  liable  foi 
the  demand,  as  in  the  case  of  goods,  not  being  necessaries,  furnished  to  an  infan  t, 
the  defendant's  promise  cannot  be  considered  as  collateral,  and  consequently 
need  not  be  in  writing;"  citing  Harris  «.  Huntbach,  1  Burrow,  373,  and 
Duncomb  v.  Tickridge,  Aleyn,  9 J.  Mr.  Browne,  in  his  Treatise  on  the 
Statute  of  Frauds,  §  156,  says :  "  Thus,  if  the  party  be  a  minor,  or  a  married 
woman,  or  under  any  other  legal  disability  as  to  forming  binding  contracts, 


300  Collateral  Undeetakin-gs.         [Ch.  viii. 

§  2'i9.  Manifestly  those  cases,  where  the  infant  or  mar- 
ried woman,  although  primarily,  or  even  exclusively 
benefited  by  the  transaction,  did  not  profess  to  assume 
any  liability  for  the  consideration,  or  was  not  made  the 
subject  of  any  credit,  call  for  no  special  remark.  For 
there  is  nothing  to  distinguish  them  from  the  ordinary 
cases,  where  goods  were  delivered,  money  loaned,  or 
services  rendered  to  one  person,  exclusively  upon  the 
credit  of  another;  as  the  circumstance  that  the  person 
primarily  benefited  was  under  a  disability  to  enter  into  a 
contract,  becomes  wholly  immaterial,  when  such  person 
made  no  attempt  to  contract ;  or  theattempt  was  unsuc- 
cessful, in  consequence  of  the  non-concurrence  of  the 
other  party. 

it  is  manifest  that  a  promise  by  a  third  person,  to  answsr  for  him  or  her,  ia 
a  matter  within  the  range  of  that  disability,  cannot  be  affected  by  the  statute 
of  frauds,"  citing  Hairis  v.  Huntbach,  1  Burrow,  371 ;  Cliapin  v.  Lapham, 
37  Massachusetts  (20  Pickering),  4G7 ;  Roche  v.  Chaplin,  1  Bailey,  419; 
Connerat  V.  GoLlsmith,  6  Georgia,  14;  Mease  v.  Wagner,  1  McCord,  395; 
and  Drake  v.  Flewellen,  33  Alabama,  106.  Of  these  cases,  Mease  v.  Wagner 
(anie,  §  223),  and  Drake  v.  Flewellen,  are  entirely  irrelevant  to  the  question, 
and  mu-^t  have  been  cited  by  mistake.  The  others  are  fully  examined  in  the 
text.  In  the  English  notes  to  the  posthumous  edition  of  Smith's  Lectures 
on  Contracts,  p.  47,  the  same  doctrine  is  doubtless  intended  to  be  stated 
(altiiough  unfortunately  expressed),  and  Harris  v.  Huntbach  is  cited  to 
uphold  it.  So  in  Burge  on  Suretyship,  p.  29  :  "  If  therefore  the  person,  for 
whom  the  promise  was  given,  was  exempt  from  all  liability  by  reason 
of  his  infancy,  the  promise  given  is  original,  and  not  collateral,"  citing 
Harris  v.  Huntbach.  Messrs.  Hare  and  Wallace,  in  their  notes  to  Smith's 
Leading  Cases,  sixth  American  edition,  vol.  1,  p.  473,  say:  "A  guaranty  of 
the  payment  of  a  debt,  or  performance  of  a  contract  by  a  feme  covert, 
minor,  or  other  person  under  a  legal  disability  to  contract,  will  follow  the 
same  rule  and  bind  the  guarantor;  because  there  is  no  obligation  resting 
upon  the  principal."  citing  Harris  v.  Huntbach,  also  Chapin  v.  Lapham,  37 
Massachusetts  (20  Pickering),  467,  and  Sanborn  v.  Merrill,  41  Maine,  467. 
But  they  add :  "  This  would  seem,  however,  not  to  be  true,  when  the  con- 
tract of  the  infant  is  for  necessaries,  or  when  he  affirms  the  contract  after 
coming  of  full  age ;  although  the  minority  of  the  person  who  receives  or 
profits  by  the  consideration,  may  tend  more  or  less  strongly  to  show  that 
he  was  not  trusted,  and  that  credit  was  given  exclusively  to  the  promisor." 
No  cases  are  cited  in  support  of  this  last  remark,  and  with  respect  to  what 


Art.  II.]  Collateral  Undertakings.  301 

§  250.  This  was  the  ground  upon  which  Sanborn  v. 
Merrill,  41  Maine,  4G7,  A.  D.  1856,  was  decided ;  although 
it  lias  been  erroneously  quoted,  as  authority  for  the  propo- 
sition, that  a  contract  collateral  to  that  of  an  infant,  is  not 
within  the  statute,  because  the  infant  is  not  liable.  There 
it  appeared  on  a  report  from  nisi  prius,  that  the  action 
was  to  recover  for  services  and  expenses  of  the  plaintiff, 
as  an  attorney  and  counsellor  at  law,  in  a  suit,  in  which 
the  defendant  was  the  next  friend  of  an  infant  plaintiff; 
and  the  proof  of  the  promise  was,  that  the  defendant  said 
that  he  had  employed  the  plaintiff  in  the  tirst  instance  to 
carry  on  the  suit,  and  agreed  to  pay  him,  and  he  should 
pay  him.  The  court  held  that  the  next  friend  of  an 
infant,  as  such,  is  not  liable  for  the  costs  which  might 

is  said  about  the  aflSrmance  of  the  contract,  after  the  infant  becomes  of  age, 
it  cannot  be  law;  because,  as  we  have  frequently  had  occasion  to  say,  the 
application  of  the  statute  is  not  afiected  by  any  tiling  which  occurs  after  the 
cqntract  was  entered  into.  See  §  152,  ante.  In  Addison  on  Contracts,  sixth 
English  edition  (18G9),  on  page  59,  it  is  said:  "If  goods  are  furnished  to  an 
infant  at  tiie  request  of  the  defendant,  the  defendant's  undeitaking  or  prom- 
ise to  pay  for  tliem,  is  not  a  collateral  promise  to  answer  for  the  debt  of 
another,  inasmuch  as  the  infant  is  not  liable  to  pay  for  them,  and  cannot  be 
indebted  by  reason  of  his  minority,"  meaning,  doubtless,  that  such  is  the 
rule,  if  they  are  so  furnished  on  the  request  and  promise  of  the  hifant,  as 
well  as  of  the  defendant.  The  authorities  cited  are  Harris  v.  Huntbach,  and 
Duncomb  v.  Tickridgo,  Aleyn,  94.  Professor  Parsons,  in  his  Treatise  on 
Contracts,  does  not  mention  the  question,  except  at  page  4  of  volume  .'second 
of  the  fifth  edition,  where  he  says:  "It"  (a  guaranty)  "is  a  promise  to  pay 
the  debt  of  another;  but  the  guarantor  may  be  held,  although  no  suit  could 
be  maintained  upon  the  original  debt as  where  the  guar- 
antor promises  to  be  responsible  for  goods  to  be  supplied  to  a  mai  ried  woman, 
or  to  be  sold  to  an  infant,  not  being  necessaries.  But  where  the  ori.t,'inal 
debt  is  not  enforceable  at  law,  the  promise  to  be  responsible  for  it  is  consid- 
ered, for  some  purposes,  as  direct  and  not  collateral;  as,  in  fact,  the  original 
promise."  The  authorities  cited  under  the  second  branch  of  this  proposition 
are  Harris  v.  Huntbach,  1  Burrow,  37],  and  Read  v.  Nash,  "there  cited;" 
also  Buckmyr  v.  Darnall,  2  Lord  Raymond,  1085.  None  of  the  above  men- 
tioned cases,  except  Chapin  v.  Lapham,  20  Pickering,  467,  and  Roche  v. 
Chapin,  1  Bailey,  419,  sustained  these  authors'  propositions,  as  far  as  they 
assert  that  guaranties  of  the  contracts  of  infants  and  of  married  women  are 
original  promises.     All  of  them  having  any  relevancy  to  the  subject,   are 


302  COLLATEEAL   UNDERTAKINGS.  [Ch.  VIII. 

be  recovered  against  the  plaintiff,  if  the  suit  should  be 
unsuccessful ;  the  infant  plaintiff  being  liable  for  costs. 
The  opinion  then  proceeds:  "The  promise  to  answer  for 
the  debt  or  default  of  another  must  be  in  writing,  to  bind 
the  person  thus  promising.  But  an  individual  may 
originally  undertake  to  pay  for  services  which  are  to  be 
rendered,  or  for  goods  which  are  to  be  delivered  to  another. 
The  question  in  such  cases  is,  on  whose  credit  the  services 
are  rendered  or  the  goods  delivered.  Nothing  is  clearer 
than  that  a  person  may  contract  for  the  performance  of 
services  in  which  he  is  in  no  way  personally  interested. 

cited  and  criticised  with  reference  to  this  principle,  in  the  text  of  this  chap- 
ter; except  Read  v.  Nash,  and  Buckmyr  v.  Darnall,  which  will  be  found  at 
§§  130  and  143;  and  the  case  in  Aleyn,  94,  which  is  copied  in  full  from 
the  folio  of  1681,  as  follows.  "  Duncomb  v.  Tickridge.  In  an  action  upon  a 
quantum  meruit  for  dyet.  lodging,  and  apparel,  the  evidence  was  that  the 
defendant,  being  an  infant,  was  sent  with  a  Rushia  merchant  beyond  sea  by 
his  mothei-,  who  did  agree  to  pay  him  so  much  for  dyet,  washing  and  apparel. 
And  the  merchant  in  Russia  committed  the  care  of  the  infant  to  the  plaintiff, 
and  promised  to  pay  him  for  his  dyet,  lodging  and  apparel.  And  Roll 
directed  the  jury,  that  if  an  infant  comes  to  a  stranger  and  boards  with  him, 
there  is  a  contract  in  law  implied,  that  he  should  pay  for  his  board  as  much 
as  it  is  worth ;  but  if  another  undertakes  to  pay  for  his  boarding,  this  express 
agreement  takes  away  the  implied  contract.  And  the  verdict  was  accord- 
ingly found  for  the  defendant."  The  case  was  decided  in  24  Car.  II,  and  of 
course  the  statute  of  frauds  had  no  application  to  it:  it  merely  holds  that 
the  express  contract  of  the  "Rushia  merchant"  prevented  an  implied  con- 
tract from  arising  on  the  part  of  the  infant.  This  would  be  equally  true  if 
the  infant  was  an  adult,  provided  the  jury  found  that  credit  was  given 
exclusively  to  the  other  party ;  as  was  decided  in  Sinklear  v.  Emert,  18  Illi- 
nois, 63,  A.  D.  1856,  where  a  father,  being  about  to  leave  home,  made  a 
special  contract  with  the  plaintiff,  to  board  his  infant  son  during  his  absence; 
and  in  an  action  upon  a  quantum  meruit  for  the  board  against  the  infant,  the 
plaintifif  was  defeated;  the  court  holding  that  the  rule  was  the  sam.e  as  if  the 
question  of  infancy  was  not  in  the  case,  when  the  father  alone  would  be 
liable,  as  the  credit  was  given  exclusively  to  him.  And  in  Ellicott  v.  Peter- 
son, 4  Maryland,  476,  A.  D.  1853,  the  defendants  were  executors  of  an  infant's 
grandfather,  who,  under  the  Maryland  law,  is  not  bound  to  support  a  grand- 
child; and  it  was  held,  that  they  were  liable  upon  a  promise  of  their  testator 
to  the  infiint's  stepfather  for  the  latter's  maintenance,  it  appearing  that  the 
testator  veibally  undertook  to  respond  therefor,  at  the  time  of  the  marriage 
of  his  daugliter  (the  infant's  mother)  to  the  plaintiff. 


Art.  II.]  Collateral  Undertakings.  303 

It  is  of  no  importance  to  the  individual  performing  them, 
who  is  to  be  thereby  benefited.  It  is  sufficient  for  him, 
that  he  performed  them  at  the  instance  and  on  the  credit 
of  his  employer.  In  such  case  the  promise  need  not  be 
in  writing."     So  the  plaintiff  had  judgment. 

§  251.  Although  both  married  women  and  infants  are, 
in  common  legal  parlance,  said  to  be  under  disability  to 
contract,  yet  the  effect  of  a  married  woman's  contract  is 
very  different  from  that  of  an  infant' s  ;  and  this  difference  is 
supposed  by  many,  probably  with  correctness,  to  exercise 
a  controlling  influence  in  the  application  of  the  statute. 
We  will  therefore  consider  separately,  the  cases  bearing 
upon  each  spfecies  of  auxiliary  contract. 

(2)  Where  the  promise  was  auxiliary  to  that  of  a  married  %uoman. 

§  252.  Where  the  person  primarily  assuming  to  respond 
was  a  married  woman,  and  the  transaction  was  not  one  of 
the  exceptional  cases,  where  her  contract  is  valid,  tliere  is 
great  weight  in  the  argument  that  a  guaranty  of  her  con- 
tract is  an  original  undertaking.  For  at  common  law  a 
married  woman' s  executory  contract  is  absolutely  void ; 
and  it  is  even  held,  that  such  a  contract  is  incapable  of 
ratification  by  her,  after  the  cessation  of  the  coverture,  by 
the  death  of  her  husband  or  by  a  divorce,  without  such  a 
new  consideration  as  would  suffice  to  sustain  it,  as  a  new 
and  independent  contract,  {h)  And  where  she  has  a  sepa- 
rate estate,  her  general  contract  will  not  bind  her  estate 
even  in  equity;  in  order  that  it  should  have  that  effect 
she  must  in  some  form  create  a  charge  or  lien  upon  it. 
When  she  has  done  so;  or  if  the  transaction  is  one, 
where  she  or  her  estate  is  made  liable  by  statute  ;  the 
undertaking  of  a  person  who  "comes  in  aid''  of  such 
liability  is  clearly  collateral,  within  the  principle  of  all  the 
authorities  heretofore  cited ;  but  in  all  other  cases,  as  there 
is  no  legal  or  equitable  debt  of  a  third  person,  to  which 


{h)  Liltlefield  v.  Shee,  2  Barnewall  and  Adolphus,  811 ;  Meyer  v.  Hawortb, 

8  Adolphus  and  Ellis,  4G7. 


304  Collateral  Undertakings.        [Ch.  viii. 

sucli  an  undertaking  can  be  collateral,  the  promise  of  the 
so-called  guarantor  would  seem  to  be  original.  And  yet 
there  are  many  cases,  where  the  credit  of  a  married  woman 
is  recognized  as  having  a  legal  existence,  although  the 
facts  were  not  such  as  to  render  her  or  her  property  liable 
even  in  equity,  (c) 

§  253.  And  in  one  case  in  the  New  York  Supreme  Court, 
Kimball  v.  Newell,  7  Hill,  116,  A.  D.  1845,  which  was  an 
action  of  covenant,  upon  a  sealed  guaranty  of  the  payment 
by  a  married  woman,  of  the  rent  of  a  dwelling  leased  by 
her.  Nelson,  C.  J.,  said  that  it  had  been  decided  by  the 
English  Court  of  Common  Pleas,  that  a  verbal  promise  to 
respond  for  a  married  woman' s  debt  is  void,  within  the 
statute  of  frauds.  The  defendant  insisted  that  as  his  prin- 
cipal, being  a  married  woman,  was  not  liable  upon  her 
covenant,  he,  the  surety,  was  also  not  liable:  and  in  dis- 
cussing the  question,  the  learned  Chief  Justice  referred  to 
Maggs  v.  Ames,  as  an  action  against  a  surety  for  a  mar- 
ried woman.  "There,"  he  said,  "the  question  was 
whether  the  undertaking  of  the  defendant  was  an  original 
one,  so  as  not  to  require  it  to  be  in  writing.  The  court 
held  that  it  was  collateral,  and  therefore  should  have  been 
in  writing.     But  neither  the  counsel  nor  court  supposed, 

(c)  The  cases  referred  to  are  those,  where  an  action  has  been  brought  against 
the  husband  for  goods  furnished  to  the  wife,  and  it  has  been  held  that  the 
goods  were  in  fact  furnished  upon  the  credit  of  the  wife,  and  not  of  the  hus- 
band. Bentley  v.  Griffin,  5  Taunton,  356;  Holt  v.  Brien,  4  Barnewall  and 
Alderson,  252;  and  Metcalfe  v.  Shaw,  3  Campbell,  22,  are  leading  cases  upon 
tliis  subject.  For  other  similar  cases  see  1  Parsons  on  Contracts,  fifth  edition, 
348,  and  notes.  The  distinction  between  a  wife's  credit,  and  that  of  her 
husband,  is  very  neatly  taken  in  the  opinion  delivered  in  Connerat  v.  Gold- 
smith, C  Georgia,  14.  The  case  of  Darnell  v.  Tratt,  2  Carrington  and  Payne, 
82,  cited  ante,  §  158,  also  recognizes  the  credit  of  a  married  woman  as  having 
a  legal  existence,  in  direct  connection  with  the  question  whether  a  promise 
to  respond  for  her  is  original  or  collateral;  andalthough  it  was  held  there  that 
the  contract  was  not  collateral,  the  absence  of  any  allusion,  by  the  court  or  the 
counsel,  to  a  distinction  growing  out  of  the  fact,  that  the  person  alleged  to 
be  the  principal  contractor  was  a  married  woman,  is  an  indication  that  it  was 
then  supposed  that  no  such  distinction  existed. 


Art.  II.]  Collateral  Undertakings.  305 

that  the  defendant  would  not  have  been  bound,  if  the 
contract  had  been  in  writing.  On  the  contrary  that  was 
assumed."  But  we  think  that  a  careful  examination  of 
the  case  referred  to  by  the  learned  Chief  Justice,  will  show 
that  it  is  of  no  value  upon  this  question. (<:?) 

§  254.  However,  Miller  v.  Long,  45  Pennsylvania,  350, 
A.  D.  1863,  is  perliaps  an  authority  for  holding  that  the 
statute  applies  to  a  promise,  collateral  to  a  married  wo- 
man' s  contract.  There  the  defendant' s  wife  signed  a  note, 
together  with  the  defendant' s  step-  son,  in  her  own  name 
and  for  her  son's  benefit ;  and  at  the  same  time  the  defend- 
ant, being  present,  was  also  requested  to  sign  it ;  but  he 
refused  to  do  so,  and  told  his  wife,  in  presence  of  the 
plaintiff,  that  she  should  put  her  name  to  it  and  he  would 


{d)  The  case  of  Maggs  v.  Ames  was  decided  in  the  year  1828,  and  is 
reported  in  1  Moore  and  Payne,  294,  and  4  Bingham,  470;  according  to 
both  reports  the  declaration  contained  two  special  counts ;  the  first  upon  the 
defendant's  promise  to  pay,  in  case  of  dishonor,  a  bill  of  exchange  to  be 
drawn  upon  and  accepted  by  one  Ann  Prickett,  for  a  debt  due  from  her; 
and  the  second  upon  a  promise  to  pay  the  debt  itself.  The  defendant 
pleaded  five  pleas;  the  fourth  was  to  the  efiect  that  there  was  no  writing  as 
required  by  the  statute  of  frauds ;  and  the  fifth,  that  at  the  time,  etc.,  and 
thence  hitherto,  etc.,  Ann  Pricket  was  a  married  woman.  Both  reports  say 
that  these  pleas  were  pleaded  to  hoth  counts.  There  was  a  special  demurrer 
to  the  fourth  and  fifth  pleas ;  and  after  argument  the  court  gave  judgment 
for  the  defendant.  It  will  be  seen,  from  this  statement,  that  the  question 
to  which  Chief  Justice  Nelson  referred,  could  not  have  arisen ;  as  the  pleas  of 
coverture  and  of  the  statute  were  entirely  distinct;  and  in  considering  the 
plea  of  coverture^  the  court  must  have  assumed,  upon  well  settled  rules  of 
pleading,  (the  force  of  which  was  fully  recognized  in  the  opinion  delivered), 
that  both  the  promises  set  forth  in  the  declaration  were  in  writing.  Accord- 
ing to  the  reports  of  the  decision,  the  court  held  that  a  plea  of  coverture  of 
the  original  debtor  was  a  good  defence,  not  only  to  a  count  upon  a  promise  to 
pay  her  debt  in  case  of  her  default,  but  also  to  a  count  upon  an  absolute 
promise  to  pay  it.  But  the  opinion  says  no  such  thing;  on  the  contrary  it  is 
directly  the  other  way,  with  respect  to  the  plea  of  coverture,  and  the  plea  of 
the  statute,  to  the  count  upon  the  absolute  promise.  There  are  other  dis- 
crepancies between  the  decision  and  the  opinion,  and  some  palpable  errors 
in  the  latter.  As  far  as  the  question  now  under  examination  is  involved,  both 
reports  are  wholly  unreliable,  and  in  truth  incomprehensible. 
39 


306  Collateral  Undertakings.         [Ch.  viii. 

see  it  paid,  and  afterwards  lie  promised  to  pay  it.  The 
plaintiff  had  judgment  in  the  Common  Pleas ;  and  error  was 
brought  thereon  to  the  Supreme  Court.  There  it  was  held 
that  the  defendant  was  not  liable  on  his  promise ;  first, 
because  he  was  not  the  maker  of  the  note  and  it  would  be 
in  contradiction  of  the  writing  to  hold  him  liable ;  and 
secondly,  because  ' '  there  is  no  promise  in  writing  by  him, 
and  therefore  no  promissory  note  by  him,  and  no  valid 
promise  to  pay  the  debt  of  another,  whether  his  wife' s  or 
her  son's."     The  judgment  was  therefore  reversed. (e) 

§  255.  In  Connerat  v,  GoldsmitJi,  6  Georgia,  14,  A.  D. 
1849,  the  plaintiff  sued  to  recover  the  value  of  certain  fur- 
niture delivered  to  the  defendant' s  wife  ;  and  it  appeared 
that  she  had  a  separate  estate ;  and  that  she  purchased  the 
furniture  herself,  and  gave  her  note  for  the  price,  in  exchange 
for  which  the  plaintiff  gave  her  a  receipt  in  full ;  but  evidence 
was  given  of  a  subsequent  verbal  promise  by  the  defend- 
ant to  pay  the  note.  The  court  held  that  he  was  not  liable, 
because  it  was  evident  that  the  credit  was  given  to  the 
wife  and  not  to  the  husband  ;  so  that  if  the  husband  sub- 
sequently made  a  promise  to  pay  the  note,  such  prom- 
ise was  void  within  the  statute  of  frauds,  as  being  an 
engagement  to  answer  for  the  debt  of  another.  The  opin- 
ion, however,  speaks  of  the  wife  as  being,  as  to  her  sepa- 
rate estate,  a  feme  sole  ;  and  concludes  by  saying  that  the 
plaintiff  has  a  remedy  against  her  property.  Unless  there 
is  something  peculiar  and  exceptional  in  the  law  of 
Georgia,  it  is  questionable  whether  the  wife's  property 
was  answerable  for  the  debt,  either  at  law  or  in  equity ;  so 
that  upon  the  facts  of  the  case,  it  would  apparently  be  an 
authority  for  holding,  that  a  promise  is  within  the  statute, 
whenever  it  was  collateral  to  that  of  a  married  woman.  But 
as  the  court  assumed,  whether  rightly  or  not,  that  the 


(e)  The  Pennsylvania  married  woman's  act,  passed  in  1848,  is  not  construed 
as  giving  a  married  woman  any  new  power  to  contract  debts.  See  Bright- 
ly's  Purdon's  Digest,  699  to  702,  and  note.  The  case  cited  in  the  text  is 
shamefully  reported ;  and  we  are  inclined  to  think  that  the  decision  turned 
entirely  upon  a  point  of  pleading. 


Art.  II.]  Collateral  Undertakings.  307 

woman' s  property  was  liable  for  the  debt,  the  case  cannot 
fairly  be  regarded  as  holding  any  thing  more,  than  that  an 
equitable  liability  of  a  married  woman's  property  consti- 
tutes such  a  debt,  that  the  statute  of  frauds  will  attach  to 
a  promise  relating  thereto  ;  in  the  same  manner  as  if  the 
person  benetited  by  the  transaction,  out  of  which  it  arose, 
was  under  no  disability. 

§  256.  In  view  of  these  decisions,  (/)  it  is  impossible 
to  say  that  the  law  is  settled  that  a  promise  to  respond, 
concurrently  with  a  married  woman,  upon  a  consideration 
moving  to  her,  is  not  within  the  statute  of  frauds.  All 
that  can  be  said,  is  that  the  weight  of  reasoning  appears 
to  favor  such  a  doctrine ;  but  upon  the  authorities  the 
question  is  an  open  one.  Nor  can  we  find  much  to  shed 
light  upon  it,  by  consulting  the  cases  where  the  undertaking 
was  in  writing.  They  all  agree  that  the  surety  in  such  a 
case  is  bound,  notwithstanding  the  coverture  of  the  prin- 
cipal debtor ;  and  the  same  rule  obtains  where  the  princi- 
pal is  an  infant ;  but  the  reasoning  upon  which  the  liability 
rests  is  vague  and  by  no  means  uniform.  While  they 
assert  that  "for  some  purposes"  the  surety  is  regarded 
as  a  principal,  they  do  not  in  general  state  definitely  what 
those  purposes  are,  beyond  the  purpose  of  being  made 
liable  in  the  particular  case.  Thus  in  St.  Albans  Bank  v. 
Dillon,  30  Vermont,  122,  A.  D.  1857,  the  court  said  that  the 
maker  of  a  joint  note,  where  a  married  woman  is  the  other 
party,  and  the  transaction  was  for  her  benefit,  "  stands  in 
a  certain  sense  as  principal  promisor."  But  in  Smyley 
V.  Head,  2  Richardson  (South  Carolina),  690,  A.  D.  1846, 
upon  the  same  state  of  facts,  the  court  said:  "The  liabil- 
ity of  the  surety  in  such  case  may  be  supported,  on  the 
ground,  that  he  shall  not  protect  himself,  by  alleging  the 
incompetency  of  the  supposed  principal,  which  may  have 
been  the  very  motive  with  the  other  contracting  party  for 

(/)  The  head  note  to  Bagley  v.  Sasser,  2  Jones'  Equity  (North  Carolina), 
350,  A.  D.  1856,  impHes  that  it  is  relevant  to  this  subject;  but  we  fail  to  dis- 
cover its  application,  upon  an  examination  of  the  case  itself. 


308  Collateral  Undektakings.         [Ch.  viii. 

requiring  security  ;  and  by  analogy  to  the  law  of  principal 
and  agent,  the  surety  may  be  held  liable  as  principal, 
for  an  engagement  he  has  made  in  behalf  of  one,  who  was 
incompetent  to  contract,"  which  apparently  puts  the  lia- 
bility upon  the  ground  of  an  estoppel  in  pais.  And  in 
the  case  already  cited,  Kimball  v.  Newell^  7  Hill,  116, 
wlijle  Nelson,  C.  J.,  assigned  no  special  reason  for  holding 
the  defendant  liable,  Beardsley,  J.,  put  it  upon  the  ground 
of  an  estoppel  by  deed.  He  says:  "The  defendant  by 
his  covenant  admits  she  was  thus  bound,  and  he  shall 
not  ...  be  permitted,  on  the  ground  now  set  up,  to 
deny  the  legal  existence  of  a  covenant  which  is  explicitly 
conceded  by  his  own  deed." 

(3)  Whe,re  the  proviise  was  auxiliary  to  that  of  an  infant. 

§  257.  Passing  now  to  the  consideration  of  the  cases, 
where  the  person  who  was  benefited  by  the  consideration, 
and  who  assumed  the  primary  liability,  was  an  infant ;  we 
observe  that  the  principles  which  govern  the  liability  of 
an  infant,  upon  an  executory  contract  not  for  necessaries, 
would  seem  to  render  it  still  more  questionable,  whether 
the  concurrent  undertaking  of  another,  to  respond  for  a 
debt  contracted  by  him,  can  be  treated  as  original,  by 
reason  of  any  invalidity  of  the  infant's  promise.  For 
while  the  contract  of  a  married  woman  is,  as  we  have  seen, 
so  absolutely  void  at  common  law,  that  a  new  promise, 
after  the  disability  has  ceased,  will  not  suffice  to  sustain 
it,  without  a  new  consideration  ;  the  rule  is  quite  difl'erent 
with  respect  to  that  of  an  infant.  Without  undertaking 
to  give  here  any  comprehensive  statement  of  an  infant' s 
rights  and  liabilities,  it  will  be  sufficient  for  our  purpose 
to  say,  that  while  an  infant  is  liable  for  all  torts  committed 
by  him,  in  general  his  contract  is  not  void  but  only  voida- 
ble ;  that  is,  he  may,  either  during  minority  or  a  reason- 
able time  after  majority,  avoid  the  contract;  or  on  the 
other  hand,  he  may,  after  he  attains  majority,  confirm  and 
enforce  it.  It  is  said  that  contracts  of  suretyship,  and 
other  similar  contracts,  which  the  court  can  clearly  see 
will  not  promote  the  infant' s  interest,  can  be  declared  void 


Art.  II.]  Collateral  Undertakings.  309 

by  the  court ;  but  the  better  opinion  seems  to  be  that  no 
such  jurisdiction  exists,  and  that  no  contract  of  an  infant 
is  absolutely  void  ;  it  being  the  exclusive  privilege  of  the 
infant  himself  to  avoid  his  contracts.  (^)  The  accomplished 
authors  of  the  American  Leading  Cases,  in  the  course  of 
a  chapter,  which  contains  a  very  full  and  lucid  discus- 
sion of  the  liabilities  and  rights  of  infants,  say:  "The 
numerous  decisions  which  have  been  had  in  this  country, 
justif}"  the  settlement  of  the  following  definite  rule,  as  one 
that  is  subject  to  no  exceptions.  The  only  contract  bind- 
ing on  an  infant  is  the  implied  contract  for  necessaries : 
the  only  act  which  he  is  under  a  legal  incapacity  to  per- 
form, is  the  appointment  of  an  attorney :  all  other  acts 
and  contracts,  executed  and  executory,  are  voidable  or 
confirmable  by  him  at  his  election.  "('^) 

§  258.  The  solution  of  the  question  seems  to  depend 
upon  the  legal  character  of  the  infant' s  contract,  during 
the  period  which  elapses  between  its  creation,  and  its 
avoidance  or  affirmance.  And  in  common  legal  parlance, 
such  a  contract  is  said  to  be  binding  on  both  parties,  until 
it  is  disaffirmed  by  the  infant.  This  expression  defines 
with  substantial  accuracy  the  rights  and  liabilities  of  both 
the  parties.  To  say  that  a  contract  is  voidable  imports, 
ex  vi  termini,  that  it  is  good  until  it  is  avoided.  And  the 
rule  is  well  settled  that  no  one  but  the  infant  himself  can 
avoid  his  contract.  Hence  it  seems  very  clear  that  after 
the  making  of  a  contract  by  an  infant,  and  during  the 
intermediate  time  elapsing  before  its  disaffirmance,  it  has 
a  legal  value  and  character  as  a  binding  agreement,  under 
which  rights  may  be  acquired  or  lost.  Consequently  there 
is  a  period  of  time,  in  which  the  collateral  promisor  and  the 
principal  debtor  are  concurrently  liable,  which  is  the  test 
whether  the  former' s  contract  is  within  the  statute ;  for 
events  happening  after  the  contract  has  been  entered  into,  are 
wholly  immaterial  to  the  determination  of  that  question.  ( / ) 

(7)  1  Parsons  on  Contracts,  fiRh  edition,  294,  296. 
(A)  1  American  Leading  Cases,  fourth  edition,  244. 
(t)  See  ante,  §  152. 


310  Collateral  Undertakings.        [Cli.  vin. 

§  259.  But,  as  was  shown  in  the  note  to  section  248,  the 
general  opinion  seems  to  be  the  other  way,  although  it  is  not 
suiDported  by  much  authority.  The  case  most  frequently 
cited,  in  support  of  the  theory  that  the  auxiliary  promisor 
is  liable,  because  the  infant' s  contract  does  not  bind  him,  is 
Harris  v.  Hunthach,  1  Burrow,  371,  A.  D.  1757,  which,  as 
we  regard  it,  holds  no  such  doctrine.  There  the  promises 
upon  which  the  action  was  brought  were  in  writing,  and 
so  the  application  of  the  statute  of  frauds  was  not  directly 
in  question ;  but  the  case  is  a  pertinent  authority  under 
the  statute,  because  the  pleadings  presented  the  precise 
question,  whether  the  undertaking  was  original  or  collat- 
eral. The  action  was  upon  a  general  indebitatus  assump- 
sit, the  declaration  containing  two  counts ;  the  first  for 
money  lent  and  advanced  by  the  plaintiff,  at  the  defend- 
ant' s  request ;  and  the  second  for^  money  laid  out  and 
expended  by  the  plaintiff,  at  the  like  request.  As  the 
question  respecting  the  first  count  was  almost  too  clear  for 
argument,  it  will  suffice  to  say  that  it  arose  upon  the 
defendant' s  note  of  hand,  the  consideration  of  which  enured 
to  the  infant's  benefit.  To  sustain  the  second  count,  the 
plaintiff  proved  that  one  Davidson,  the  gardener  upon  the 
estate  of  the  defendant' s  infant  grandson,  applied  to  the 
plaintiff,  by  order  of  the  defendant,  for  money  to  pay 
the  workmen  employed  upon  the  estate ;  but  the  plaintiff 
refused  to  furnish  the  money,  unless  the  defendant  would 
sign  a  receipt  therefor ;  whereupon  the  defendant  wrote  to 
the  plaintiff  a  note  requesting  him  to  pay  Davidson,  ' '  on 
the  account  of  Master  Hillier,  for  the  workmen' s  use,  the 
sum  of  15Z." ;  and  upon  this  the  plaintiff  paid  the  money  to 
Davidson,  who  executed  his  receipt  therefor  to  the  plaintiff. 
There  was  a  verdict  for  the  plaintiff,  and  a  case  was 
reserved  for  the  opinion  of  the  court  upon  the  question 
whether  the  evidence  was  sufficient  to  support  the  verdict. 

§  260.  Upon  the  argument  the  point  was,  whether  the 
defendant' s  undertaking  was  original  or  collateral ;  it 
being  conceded,  that  in  the  latter  case  the  declaration 
should  have  been  special,  but  in  the  former  the  general 


Art.  II.]  Collateral  Undertakings.  311 

count  sufficed.  The  court  held  that  it  was  an  original,  and 
not  a  collateral  undertaking,  for  the  reason  that  there  was 
no  proof  that  the  plaintiff  had  any  remedy  against  the 
infant.  Lord  Mansfield,  C.  J.,  said:  "  Here  is  a  mansion- 
house  belonging  to  an  infant,  which  mansion-house  has 
a  garden  belonging  to  it.  It  might  not  be  necessary  (in 
regard  to  the  infant's  situation  and  circumstances),  to 
support  this  garden  (which  might  be  a  pleasure  garden), 
and  no  action  will  lie  against  the  infant  but  for  necessaries. 
It  don't  appear  at  all  that  there  could  be  any  remedy 
against  the  infant."  Denison,  J.,  added:  "There  is  no 
privity  between  the  plaintiff  and  the  infant ; "  and  Foster, 
J.,  said:  "The  infant  was  not  liable,  and  therefore  it 
could  not  be  a  collateral  undertaking.  It  was  an  original 
undertaking  of  the  defendant  to  pay  the  money."  So  the 
postea  was  delivered  to  the  plaintiff. 

§  261.  If  these  remarks  of  the  judges  be  disconnected 
from  the  facts  upon  which  they  were  predicated,  there  are 
some  expressions  in  them,  which  seem  to  convey  the  idea 
that  the  liability  of  the  defendant  was  original,  merely 
because  the  person  undertaken  for  was  an  infant.  But  if 
due  weight  be  given  to  the  peculiar  circumstances,  under 
which  they  were  spoken,  we  think  it  will  be  manifest,  that 
Harsris  v.  Hunthach  is  not  an  authority  upon  either  side 
of  the  question  under  consideration ;  for  the  infant  had 
made  no  express  contract;  and  what  is  said  by  Lord 
Mansfield  about  necessaries,  is  evidently  upon  the  ques- 
tion, whether  there  was  any  thing,  upon  which  the  court 
could  raise  an  implied  contract  against  him.  The  conclu- 
sion was,  not  that  the  defendant  had  undertaken  collat- 
erally to  respond  for  an  infant's  voidable  contract;  but 
that  the  infant  was  not  liable  upon  any  contract,  express 
or  implied  ;  and  the  result  would  have  been  precisely  the 
same,  if  "Master  Hillier"  had  been  an  adult;  only  in  the 
latter  case  the  remarks  about  necessaries  would  have  been 
irrelevant.  (,/) 

ij)  In  Tupper  v.  Cadwell,  53  Massachusetts  (12  Mefcalf),  559,  A.  D.  1847. 
It  was  held  that  an  infant  was  not  liable,  upon  an  implied  contract  for  th© 


313  COLLATEKAL  UNDERTAKINGS.  [Ch.  VIII. 

§  262.  The  case  of  Roclie  v.  OhapUn,  1  Bailey  (South 
Carolina),  419,  A.  D.  1830,  has  been  also  supposed  to  con- 
tain a  judicial  sanction  of  the  proposition  that  a  promise 
to  pay  an  infant' s  debt  is  original.  The  report  does  not 
disclose  the  circumstances  of  the  transaction  between  the 
plaintiff  and  the  infant;  it  merely  says  that  this  was  a 
"summary  process  upon  an  open  account,  for  a  frock  coat 
furnished  by  the  plaintiff, a  tailor,  to  the  defendant' s  ward." 
There  was  an  interrogatory  annexed  to  the  process,  under 
the  local  statute,  requiring  the  defendant  to  answer  on 
oath,  whether  he  had  not  promised  the  plaintiff' s  attorney, 
after  the  account  had  been  placed  in  his  hands  for  collec- 
tion, to  pay  the  debt,  if  he  should  be  indulged  for  a  short 
period.  He  refused  to  answer  on  two  grounds,  one  of 
which  was  that  if  such  a  promise  had  been  made,  it  was 
void  under  the  statute  of  frauds.  In  the  court  below  the 
objection  was  overruled,  on  the  ground  that  the  promise 
"  was  an  admission,  both  that  the  debt  had  been  properly 
contracted  by  the  ward,  and  that  he  himself  had  funds  in 
hand  to  meet  it;"  and  the  plaintiff  had  judgment  under 
the  statute,  in  consequence  of  the  defendant's  refusal  to 
answer. 

§  263.  The  defendant  moved  in  the  Court  of  Appeals  to 
set  aside  the  judgment.  The  motion  was  denied,  Johnson, 
J.,  saying,  that  assuming  the  affirmative  of  the  question 
to  be  true,  the  case  was  that  the  coat  was  furnished  to  the 
ward  without  the  defendant's  order,  and  that  he  subse- 
quently promised  to  pay  the  value,  in  consideration  of 
indulgence ;  and  that  where  there  was  no  liability  on  the 
part  of  the  person  for  whom  the  promise  was  made,  the 
promise  was  original.  He  added:  "It  may,  I  think,  be 
well  questioned,  whether  an  infant  having  a  guardian 
would,  under  ordinary  circumstances,  be  himself  liable 


expenses  of  repairing  his  dwelling  house,  although  the  repairs  were  necessary 
for  the  prevention  of  immediate  and  serious  injury  to  the  house;  the  court 
holding  that  if  such  repairs  are  needed,  a  guardian  should  be  appointed  to 
make  them. 


Art  II.]  Collateral  Undertakings.  313 

even  for  necessaries  furnished  him.  But  there  is  clearly 
nothing  in  this  case  which  would  bind  him  ;  and  accord- 
ing to  the  rule,  the  promise  of  the  defendant  was  original 
and  binding  on  him,"  citing  Harris  v.  Hunthach.  The 
motion  was  therefore  denied.  It  would  seem,  from  the 
remarks  which  we  have  quoted,  that  the  pleadings  or  the 
evidence  disclosed  something,  relating  to  the  original 
transaction  between  the  plaintiff  and  the  infant,  which  the 
reporter  has  omitted ;  probably  that  the  coat  was  fur- 
nished on  the  credit  of  the  defendant,  but  without  his 
authority ;  especially  as  the  decision  of  the  court  below 
proceeded  upon  that  ground,  and  the  reason  there 
assigned  was  ample  to  sustain  the  action.  (A-) 

§  264.  In  CJiapin  v.  Lapham,  37  Massachusetts  (20 
Pickering),  467,  A.  D.  1838,  the  defendant  had  requested 
the  plaintiff  to  assist  his  minor  son,  whenever  he  should 
need  any  assistance,  in  a  business  which  he  was  carrying 
on ;  and  had  promised  to  indemnify  him  for  any  liabilities 
"which  he  might  incur,  and  any  assistance  which  he  might 
render.  Upon  the  faith  of  this  promise,  the  plaintiff  had 
signed  a  note  with  the  son,  and  for  the  latter' s  accommoda- 
tion, which  he  had  subsequently  paid  ;  and  now  he  brought 
this  action  to  recover  the  amount  so  paid.  A  verdict  was 
rendered  for  the  plaintiff,  under  a  general  charge  that  the 


(Jc)  The  case  apparently  very  nearly  resembles  that  of  Law  v.  Wilkin,  6 
Adolphus  and  Ellis,  718,  A.  D.  1837.  There  the  action  was  brought  by  a 
firm  of  tailors  for  the  value  of  a  suit  of  clothes,  supplied  to  the  defendant's 
son,  a  boy  at  a  boarding  school.  It  appeared  that  the  boy  was  in  want  of 
clothes,  but  there  was  no  evidence  to  show  that  the  father  had  ordered  this 
suit.  It  was  also  shown  that  when  the  boy  went  home  for  the  holidays,  he 
took  the  clothes  with  him;  but  "was  not  wearing  them;  "  and  he  returned 
to  school  with  them;  but  there  was  no  direct  proof  that  the  defendant  had 
seen  them.  The  plaintiffs  were  nonsuited,  and  the  court  set  aside  the 
nonsuit  and  ordered  a  new  trial,  partly  on  the  ground  that  it  appeared  that 
the  father  had  not  made  proper  provision  for  the  son.  But  Lord  Denman, 
C.  J.,  and  Patterson  and  Coleridge,  J.  J.,  also  held  that  the  presumption  was 
that  the  father  saw  the  clothes  during  the  vacation;  and  as  he  made  no  objec- 
tion, an  authority  might,  for  that  reason,  be  implied. 
40 


314  Collateral  Undertakings.        [Ch.  vin. 

promise  was  not  witliin  the  statute  of  frauds ;  and  the  case 
came  on  to  be  heard,  upon  exceptions  to  that  and  other 
portions  of  the  charge.  Shaw,  C.  J.,  delivered  the  opin- 
ion of  the  court,  overruling  the  exceptions.  Upon  the 
point  whether  the  promise  was  within  the  statute,  after 
saying  that  when  the  whole  credit  was  given  to  the  person 
making  the  promise,  it  is  original,  he  added:  "In  the 
present  case  we  think  the  whole  credit  was  given  by  the 
plaintiff  to  the  defendant.  The  son  of  the  defendant  was 
a  minor,  and  not  liable  to  any  action  by  the  plaintiff  for 
the  money  paid  on  his  account,  on  the  joint  and  several 
note  signed  by  the  plaintiff,  in  pursuance  of  the  defendant' s 
request.  The  undertaking  and  promise  of  the  defendant, 
therefore,  was  not  collateral  to  any  promise  of  the  son ; 
but  was  separate,  independent  and  original.  "(Z) 

§  265.  On  the  other  hand,  the  case  of  Clarlt  v.  Lem^  10 
New  York  Legal  Observer,  184,  decided  in  the  New  York 
Common  Pleas,  A.  D.  1851,  is  an  authority  for  holding  a 
promise  to  respond  for  an  infant' s  contract  to  be  collateral ; 
for  although  in  the  particular  case,  it  was  conditional  by 
its  terms,  it  is  believed,  that  within  the  principles  govern- 
ing verbal  contracts  of  that  character,  the  rule  is  the  same, 
in  this  connection,  whether  the  promise  was  absolute  or 
conditional,  (m)   The  plaintiff  had  sold  goods  to  the  defend- 

(?)  This  is  all  in  the  opinion  material  to  the  point  under  consideration ;  and 
if  we  understand  it  rightly,  it  means  no  more  than  that  the  infancy  of  the 
principal  debtor,  was  a  circumstance  to  show,  that  in  fact  credit  was  not 
given  to  him;  rather  than  that  it  rendered  the  contract  necessaiily  original. 
It  is  true,  that  the  infant  had  assumed  to  contract  upon  his  own  credit,  but 
not  with  the  plaintiff.  As  between  the  plaintiff  and  the  defendant,  the  result 
would  have  been  the  same  if  the  principal  debtor  had  been  an  adult.  It  will 
appear  hereafter,  (chapter  xiii,)  that  this  is  the  first  of  a  series  of  Massachusetts 
cases,  which  finally  settled  the  rule  in  that  State,  that  a  promise  to  indemnify 
the  promisee  for  becoming  surety  for  the  third  person  to  a  fourth  person,  who 
was  not  a  party  to  the  contract,  is  not  within  the  statute.  Still  the  Chief 
Justice  failed  in  this  case  to  lay  down  that  principle  distinctly,  saying  that  it 
was  not  necessary  to  decide  it;  and  placed  the  decision  entirely  upon  the 
question  of  credit. 

(m)  Chapter  vii,  article  iii. 


Art.  II.]  Collateral  UNDEKTAKmos.  316 

ant' s  son,  at  six  months'  credit,  upon  the  defendant' s  prom- 
ise to  be  responsible  and  to  pay  for  them,  if  the  son  did 
not ;  the  son  was  under  age,  and  the  plaintiff  had  refused 
to  trust  him  because  he  was  an  infant ;  but  finally  let  him 
have  the  goods,  upon  the  defendant's  promise  as  above 
stated.  The  defence  was  that  the  promise  was  within  the 
statute.  The  plaintiff  had  judgment,  which  was  reversed 
on  appeal.  Ingraham,  First  Judge,  delivering  the  opinion 
of  the  court,  held,  that  the  promise  was  not  taken  out  of 
the  statute  of  frauds  by  the  infancy  of  the  son ;  because 
"the  contract  with  the  infant  was  a  good  contract,  which 
he  could  enforce  on  his  part ;  and  which  was  only  void- 
able, if  he  saw  fit  to  avail  himself  of  his  personal  exemp- 
tion ;  but  until  the  defence  of  infancy  was  made,  the  con- 
tract was  otherwise  valid."  The  learned  judge  added,  that 
it  was  evident  that  the  defendant  did  not  intend  or  agree 
to  be  the  principal  debtor ;  this  was  apparent,  not  only 
from  the  circumstances  proved  in  evidence,  but  from  the 
terms  of  the  contract ;  the  whole  credit  was  not  given  to 
the  defendant.  "If,"  he  continued,  "the  promise  had 
been,  to  do  what  was  asked  of  the  defendant  in  the  first 
instance,  viz.,  to  indorse  the  note  of  Joseph,  there  could 
be  no  doubt  that  such  a  promise  would  be  void."  The 
case  of  Harris  v.  Hunfbach  was  distinguished  from  the 
one  at  bar,  on  the  ground  that  there  it  did  not  appear  that 
the  infant  had  made  any  contract,  or  that  there  was  any 
privity  between  the  plaintiff  and  him. 

§  266.  And  the  recent  case  of  Dexter  v.  Blanchard,  93 
Massachusetts  (11  Allen),  365,  decided  A.  D.  1865,  although 
the  question  arose  upon  a  promise  to  pay  a  debt  antece- 
dently contracted  by  an  infant,  apparently  covers  the 
whole  subject  of  the  present  discussion.  It  was  an  action 
"upon  an  oral  promise  by  the  defendant,  to  pay  to  the 
plaintiff  a  bill  for  the  hire  of  horses  and  carriages,  and  for 
injury  to  a  wagon."  At  the  trial,  "  the  plaintiff  offered 
to  prove  that  the  horses  and  carriages  were  hired,  and  the 
injury  done,  by  the  defendant's  minor  son,  to  whom  the 
credit  therefor  was  given;"  and  that  in  consideration  of 


316  COLLATEEAL   UnDEETAKINGS.  [Ch.  VIII. 

forbearance  to  trouble  the  son,  while  he  was  ill,  the  defend- 
ant promised  to  pay  the  debt.  The  judge  ruled  that  the 
action  could  not  be  maintained,  and  a  verdict  was  rendered 
for  the  defendant.  The  Supreme  Court  overruled  an 
exception  to  this  ruling,  Bigelow,  J.,  delivering  the  opin- 
ion, which,  upon  this  branch  of  the  case,  is  as  follows : 
"The  fallacy  of  the  argument  urged  in  behalf  of  the 
plaintiff,  lies  in  the  assumption,  that  there  was  in  fact  no 
debt  due  from  the  son  of  the  defendant,  because  he  was  a 
mmor  at  the  time  he  undertook  to  enter  into  a  contract 
with  the  plaintiff.  A  debt  due  from  a  minor  is  not  void ; 
it  is  voidable  only  ;  that  is,  it  cannot  be  enforced  by  a  suit 
at  law  against  the  contracting  party,  on  plea  and  proof  by 
him  of  infancy.  But  it  is  voidable  only  at  the  election  of 
the  infant,  and  until  so  avoided  it  is  a  valid  debt.  Wor 
can  a  third  person  avail  himself  of  the  minority  of  a 
debtor,  to  obtain  any  right  or  security  or  title.  Infancy  is 
a  personal  privilege,  of  which  no  one  can  take  advantage 
but  the  infant. "  "  The  effect  of  the  doctrine  contended  for 
by  the  counsel  for  the  plaintiff  would  be,  that  a  verbal 
agreement  to  answer  for  the  debt  of  another  would  be 
valid,  if  it  could  be  shown  that  the  original  contracting 
party  could  have  established  a  good  defence  to  the  debt, 
in  an  action  brought  against  him.  We  know  of  no  prin- 
ciple or  authority  on  which  such  a  proposition  can  be 
maintained.  It  certainly  would  open  a  wide  door  for  some 
of  the  mischiefs  which  the  statute  of  frauds  was  designed 
to  prevent.  "(?i) 

(n)  As  germane  to  this  question,  we  refer  also  to  the  cases  of  Haine's 
Administrator  v.  Tarrant,  2  Hill  (South  Carolina),  400,  A.  D.  1834,  and 
Conn  V.  Coburn,  7  New  Hampshire,  368,  A.  D.  1834,  (each  of  which  was  an 
action  to  recover  from  an  infant,  the  amount  paid  by  the  plaintiflf,  to  take  up 
a  promissory  note,  which  he  had  signed  with  the  infant,  as  his  surety,  for 
necessaries  furnished  to  the  infant);  and  to  Randall  v.  Sweet,  1  Denio  (New 
York),  460,  A.  D.  1845,  where  a  stranger  to  the  demand,  at  the  request  of 
the  infant,  had  paid  the  infant's  note,  given  upon  a  like  consideration.  In 
each  of  these  cases  the  creditor  was  allowed  to  recover.  In  Conn  v.  Coburn, 
it  was  expressly  conceded,  that  the  note  was  voidable,  and  that  it  did  not 
cancel  the  debt  until  it  was  paid ;  and  Parker,  J.,  delivering  the  opinion  of 


Art.  II.]  Collateral  Undertakings.  317 

§  267.  These  are,  as  far  as  we  can  ascertain,  tlie  only 
reported  cases  upon  this  subject ;  (o)  and  we  think  that 
the  weight  of  authority,  as  well  as  of  argument,  is  very 
decidedly  in  favor  of  the  ruling,  that  a  promise  in  aid  of 
that  of  an  infant,  is  within  the  statute  of  frauds,  precisely 
as  if  the  infant  was  an  adult. 

§  268.  Here  we  take  leave  of  the  cases  governed  directly 
by  the  third  general  rule  ;  but  by  no  means  of  the  principle 
embodied  in  the  rule.  On  the  contrary,  we  shall  lind  it 
underlying  many  of  the  rules  upon  which  depends  the 
validity  of  a  verbal  promise  relating  to  an  antecedent  debt 
or  liability  of  a  third  person.  Not  unfrequently  the  very 
language  of  this  favorite  rule  is  used,  as  a  test  by  which 
to  determine  the  application  of  the  others  ;  and  in  some 
cases  this  rule  has  been  erroneously  allowed  to  supercede 
the  one,  by  which  the  validity  of  the  promise  should  have 
been  determined. 


the  court,  saj's:  "If  the  infant  is  not  liable  upon  the  note,  as  he  would  not 
be  if  he  elected  to  avoid  such  liability,  an  assumpsit,  upon  the  delivery  of  the 
goods,  must  be  considered  as  subsisting  against  him ;  and  the  note  of  the 
surety  be  regarded  as  collateral  security  for  the  payment." 

(o)  Kirkham  v.  Marter,  2  Barnevpall  and.  Alderson,  613  (ante  §§  124, 
133.)  is  sometimes  supposed  to  relate  to  this  question.  If  it  has  any  bear- 
ing upon  the  validity  of  a  verbal  auxiliary  undertaking  in  behalf  of  an 
infant,  it  merely  proves  that  such  an  undertaking  is  within  the  statute,  when 
the  infant  is  liable.  But  there  is  nothing  m  the  case  to  show  that  the 
defendant's  son  was  an  infant. 


CHAPTER  NINTH. 

CASES  WHICH  ARE  NOT  WITHIIST  THE  STATUTE,  ALTHOUGH 
THE  THIRD  PERSON  AND  THE  PROMISOR  BECAME  LIABLE 
FOR  THE  SAME  DEBT,  BECAUSE  THEY  WERE  NOT  SO 
LIABLE  AT  THE  SAME  TIME.  THE  SUBJECT  COMMENCED 
WITH  THOSE  CASES,  WHERE  THE  EXTINGUISHMENT  OF 
THE  THIRD  PERSON'S  LIABILITY  RESULTED  FROM  SOME 
ACT  OR  OMISSION  OF  THE  PROMISEE,  OTHER  THAN  AN 
EXPRESS   DISCHARGE. 


§  269.  Having  thus  completed  the  examination  of  those 
cases,  where  the  liabilities  of  the  promisor  and  of  the  third 
person  did  not  concur,  for  the  reason  that  the  third  per- 
son had  assumed  no  liability  corresponding  with  that  of 
the  promisor,  at  the  time  when  the  promise  took  effect, 
we  now  come,  in  pursuance  of  the  classification  indicated 
in  the  second  chapter,  to  those  where  the  failure  of  the 
two  liabilities  to  concur,  proceeded  from  the  fact  that  the 
person  primarily  owing  the  debt  or  the  duty,  had  been 
discharged  therefrom,  before  the  undertaking  of  the  new 
promisor  took  effect.  These  form  the  second  subdivision 
of  the  fourth  class  of  cases  not  within  the  statute,  because 
the  terms  of  the  statutory  description  of  the  promises  to 
which  it  applies  are  only  partially  satisfied,  {a)  and  they 
are  governed  by  the  fourth  general  rule,  namely : 

RULE  FOURTH. 

A  promise  to  assume  an  antecedent  liability  of  a  tliird  person  is  ■withont  the  statutBi  if  the 
third  person's  liability  had  become  extinct,  at  the  time  when  that  of  the  promisor  came 
into  ezistencei 

§  270.  The  cases  governed  by  this  rule  are  also  very 
numerous  ;  and  they  arrange  themselves  into  several  dis- 
tinct groups  or  sub-classes,  depending  upon  the  manner 
m  which  the  discharge  of  the  tliird  person  was  effected, 

(a)  Section  70. 


Art.  I.]  Collateral  Undertakings.  319 

and  presenting  various  incidental  questions,  which  relate 
chiefly  to  the  sufficiency  of  the  discharge,  or  of  the  evidence 
to  establish  it.  After  disposing  of  some  preliminary 
matters  relating  to  all  these  groups,  we  will  consider  in 
this  chapter  those  cases  which  possess  in  common  the 
feature,  that  the  third  person's  discharge  resulted  from 
some  act  of  the  promisee,  done  at  the  request  of  the  prom- 
isor, but  without  any  agreement  to  that  effect  with  the 
person  discharged;  reserving  till  the  next  chapter  the 
examination  of  those,  where  the  discharge  resulted  from 
an  agreement,  to  which  the  promisor,  the  promisee,  and 
the  third  person  were  all  parties. 


ARTICLE  I. 

Origin  and  correct  definition  of  the  rule ;  in  what  oases  an  eiecntory  agreement  to  discharge 
the  third  person,  or  to  do  some  act  which  will  operate  to  discharge  him,  will  satisfy  it, 

§  271.  The  suggestion  that  the  statute  does  not  apply  to 
cases  where  the  third  person's  liability  had  become  extinct 
at  the  time  of  the  promise,  is  believed  to  have  been  first 
made  in  the  year  1766,  by  Sir  Fletcher  Norton,  comment- 
ing upon  Read  v.  Nash,  1  Wilson,  305,  in  the  course  of 
his  argument  for  the  plaintiff  in  Williams  v.  Leper,  3 
Burrow,  1886.  (a)  But  the  earliest  case  where  we  find  any 
such  principle  distinctly  suggested  from  the  bench,  is 
Anstey  v.  Mar  den,  4  Bosanquet  and"  Puller  (1  New 
Keports),  124,  decided  in  the  Common  Pleas  in  the  year 
1804,  already  cited  at  considerable  length  in  another  con- 
nection. (&)  There,  as  was  mentioned  when  the  case  was 
formerly  cited.  Sir  James  Mansfield,  the  Chief  Justice, 
said  that  one  of  the  grounds  of  his  ruling  at  the  trial  waa 
that  he  did  not  see  "how  one  person  could  undertake  for 
the  debt  of  another,  when  the  debt,  for  which  he  was  sup- 
posed to  undertake,  was  discharged  by  the  very  bargain." 
And  he  seems  to  have  retained  that  impression,  after  the 
argument  of  the  rule  nisi ;  although  he  ultimately  fell  in 


(a)  See  ante,  §  130,  and  post  §  577,  578. 
(6)  Sections  118  and  119. 


320  COLLATEKAL   UNDERTAKINGS.  [Ch.  IX. 

with  the  conclusions  of  the  other  judges,  who  discharged 
the  rule  upon  a  ground,  which  seems  to  be  wholly  incon- 
sistent with  the  application  of  that  doctrine  to  the  case 
then  before  them. 

§  272.  This  suggestion  of  the  Chief  Justice  provoked 
much  cotemporaneous  comment ;  and  Mr.  Roberts,  whose 
Treatise  on  the  Statute  of  Frauds  was  published  soon 
afterwards,  condemned  it  in  unqualified  terms,  (c)  But 
fourteen  years  after  the  decision  in  Anstey  v.  Marden, 
the  case  of  Goodman  v.  Chase,  which  will  presently  be 
given  at  length,  was  decided  in  the  King' s  Bench,  before 
Lord  Ellenborough  and  his  associate  justices ;  wherein 
that  principle  was  distinctly  promulgated  as  the  ground 


(c)  The  following  extract  contains  the  substance  of  his  argument  against 
the  principle :  "  The  promise  mentioned  by  the  statute  is  as  well  that  whereby 
a  man  undertakes  to  answer  for  the  debt,  as  for  the  default,  of  another;  and 
although  where  the  original  party  was  liable  to  the  performance  of  some  act 
(to  which  case  the  words  default  or  miscarriage  seem  properly  applicable), 
the  promise  may  be  construed  in  the  limited  sense  of  an  alternative  under- 
taking only ;  yet  such  interpretation  will  be  too  narrow  where  the  promise 
is  to  pay  the  deht  of  another.  To  answer  for  another  man's  debt  seems  to  be 
a  phrase  extending  as  well  to  promises  to  pay  another's  debt,  where  the 
promise  is  made  in  consideration  of  an  instantaneous  discharge  of  the  party 
originally  liable,  so  as  to  substitute  the  promisor  in  his  place  as  the  only 
debtor,  as  where  the  engagement  is  only  meant  to  be  in  the  alternative;  and 
as  the  greatest  lawyers  have,  for  a  series  of  years,  strongly  declared  their 
conviction  of  the  expediency  of  a  liberal  construction  of  the  statute,  there 
does  not  appear  to  be  any  just  ground  for  confining  this  clause  to  the  case 
of  such  promises  only,  which  suppose  the  liability  of  the  original  debtor  to 
remain.  Where,  indeed,  there  was  no  previously  existing  debt,  as  where 
the  undertaking  arises  upon  the  furnishing  and  delivery  of  goods  by  a  trader 
to  a  third  person,  to  place  such  case  within  the  reach  of  the  statute,  it  is 
necessary  that  the  deliveree  should  become  liable ;  in  such  case,  therefore,  the 
liabilities  of  the  party  undertaken  for,  and  the  party  undertaking,  must 
necessarily  exist  together.  But  if  I  undertake  to  satisfy  the  debt  of  a  person 
already  indebted,  in  consideration  of  his  instantaneous  release,  there  seems 
to  be  no  good  reason  for  saying  that  this  is  not  a  promise  to  answer  for  the 
debt  of  another,  within  the  reason  and  contemplation  of  the  act  of  Parlia- 
ment." Roberts  on  Frauds,  pp.  224,  225.  Case  v.  Barber,  T.  Raymond,  450, 
A.  D.  1681,  appears  to  be  an  authority  in  support  of  Mr.  Roberts's  views. 


Art.  I.]  Collateral  Undertakings.  321 

of  the  decision.  Since  that  time,  it  has  been  universally 
acknowledged,  as  the  true  rule  of  construction  of  the 
statute,  by  all  the  English  courts  and  text  writers  ;  and 
from  England  it  has  travelled  to  the  United  States,  where 
it  has  now  become  equally  well  settled,  and  although 
some  ill-considered  rulings  to  the  contrary  may  be  found 
scattered  through  our  reports,  our  courts  are  practically 
unanimous  in  recognizing  it.{d ) 

§  273.  The  rule  is  frequently  stated,  as  though  it  was 
conhned  to  cases  where  the  discharge  of  the  third  person, 
or  the  act  from  which  his  discharge  resulted  by  operation 
of  law,  constituted  the  consideration  of  the  promisor's 
undertaking.  In  practice  such  is  almost  always  the  fact ; 
but  it  is  believed  that  the  principle  does  not  depend  upon 
that  circumstance ;  and  that  all  that  is  required  is,  that 
the  two  liabilities  should  not  exist  simultaneously.  If 
we  are  correct  in  this  conclusion,  the  consideration  of  the 
discharge  and  of  the  promise  may  be  entirely  distinct. 

§  274.  But  while  it  seems  impossible  to  state  any  satis- 
factory reason  for  this  rule,  other  than  that  the  two  lia- 
bilities did  not  at  any  time  concur,  it  has  happened  that 
in  nearly  every  English  case  of  this  class,  there  has  been 
a  period  of  time,  more  or  less  extended,  during  which  the 
undertaking  of  the  promisor  was  for  some  purpose  a 
binding  contract,  and  yet  the  third  person  was  not  actually 
discharged.  This  feature  of  the  cases  at  once  provokes 
the  inquiry,  whether  an  executory  agreement  on  the  part 
of  a  creditor  to  discharge  his  debtor,  or  to  do  some  act 
fi'om  whi(;h  his  discliarge  will  result  by  operation  of  law, 
will  take  out  of  the  statute  a  stranger's  promise  to  pay 
the  debt.  The  question  is  full  of  embarrassment ;  and  we 
can  make  only  an  experimental  effort  to  answer  it. 
1 

(d)  Per  Lipscomb,  J.,  Tompkins  v.  Smith,  3  Stewart  and  Porter  (Ala.),  G2, 
A.  D.  1832;  Saxton  v.  Landis,  1  Harrison  (N.  J.),  302  (1838);  per  Wilson, 
C.  J.,  Evans  v.  Lohr,  2  Scammon  (Illinois),  511  (1840) ;  per  Whitman,  C.  J., 
Rowe  V.  Whittier,  21  Maine,  550  (1842). 

41 


322  COLLATEKAL   UNDERTAKINGS.  [Ch.  IX. 

§  275,  Suppose  that  A  and  B  should  agree,  that  at  some 
future  day,  A  will  pay  B  the  amount  of  a  debt  which  C 
owes  him,  and  that  upon  receiving  the  money  B  will  dis- 
charge C  from  the  debt ;  it  is  manifestly  absurd  to  say, 
that  the  circumstance  that  B  expressly  agrees  to  discharge 
C,  will  take  the  promise  out  of  the  statute,  when  the  fulhl- 
ment  of  A' s  promise  would  extinguish  the  debt,  without 
any  special  agreement  to  that  effect.  Doubtless  no  one 
will  deny  that  in  the  case  put,  the  statute  avoids  the  agree- 
ment, unless  it  was  in  writing.  The  same  result  would 
follow,  if  A' s  promise  was  to  pay  a  smaller  sum  than  the 
amount  of  the  debt ;  or  to  do  some  specific  act  in  lieu  of 
paying  money,  as,  for  instance,  to  give  a  note  for  all  or 
part  of  the  debt.  In  all  such  cases  there  may  be  two  lia- 
bilities, which  can  be  enforced  by  concurrent  actions ;  for 
if  B  should,  at  the  appointed  day,  tender  a  discharge  of 
C,  and  demand  fulfilment  of  A's  contract,  as  a  condition 
of  its  taking  efiect,  he  could  maintain  an  action  against  A 
for  breach  of  his  promise,  without  affecting  his  original 
remedy  against  C.  And  it  would  seem,  that  the  applica- 
tion of  the  statute  depends  upon  the  fact,  that  both  these 
actions  might  be  maintained. 

§  276.  On  the  other  hand,  suppose  that  the  agreement  is 
that  A  will  pay  B  a  certain  sum  at  a  future  day,  provided 
that  B  shall  have  previously  discharged  C  ;  and  B  agrees 
that  he  will  discharge  C  accordingly.  In  this  case,  as  B 
can  maintain  no  action  against  A,  until  he  shall  have 
actually  discharged  C,  there  cannot  be  two  concurrent 
actions.  It  would  therefore  seem,  that  in  such  a  case,  the 
promise  is  not  within  the  statute.  And  we  suspect  that 
in  all  cases,  where  the  original  debtor' s  discharge  was  not 
fully  accomplished,  till  after  the  making  of  the  new  agree- 
ment, the  true  test  of  the  application  of  the  statute  will 
be  found  in  the  answer  to  the  inquiry,  whether  the  terms 
of  the  agreement  were  such,  that  the  creditor  could,  in 
any  contingency,  maintain  an  action  thereon,  vtdthout 
previously  discharging  his  debtor.  Although  this  dis- 
tinction is  very  fine,  and  cases  can  easily  be  suggested, 


Art.  I.]  Collateral  Undektakings.  323 

where  the  course  of  the  dividing  line  could  be  detected 
with  difficulty,  there  seems  to  be  no  other  satisfactory 
method  of  dcfcndin";  some  of  the  cases  upon  principle,  or 
of  reconciling  llicni  with  othei-s.  As  this  question  is  of 
considerable  practical  importance,  and  the  foregoing 
distinction  has  never,  as  far  as  we  have  noticed,  been 
expressly  taken,  we  shall  recur  to  the  subject  again,  after 
examining  the  principal  English  cases,  where  the  question 
is  presented,  (e) 

§  277.  Proceeding,  therefore,  to  the  consideration  of  the 
cases,  where  the  extinguishment  of  the  third  person's  lia- 
liility  resulted  from  some  act  of  the  promisee,  other  than 
an  express  discharge,  tendered  to  and  accepted  by  the 
third  person;  we  find  that  in  some  of  them,  wh(>re  the 
third  person's  liability  was  in  the  form  of  an  indebted- 
ness, ascertained  and  payable,  the  discharge  resulted 
from  some  act  or  omission  of  the  promisee,  whence  the 
law  presumes  a  satisfaction,  and,  without  considering  the 
question  of  actual  intent,  declares  the  debt  to  be  cancelled. 
In  others,  where  the  third  person' s  obligation  was  a  con- 
tract to  perform  some  act,  other  than  the  payment  of  a 
debt,  or  whereby  a  debt  would  be  created  upon  a  future 
contingency ;  the  promisee,  without  any  express  discharge 
of  the  obligation,  has  pursued  such  a  course  with  respect 
to  the  subject  matter  of  the  contract,  as  to  indicate  his 
intention  to  abandon  it  altogether ;  and  to  preclude  him 
from  enforcing  it  against  the  other  party.  Each  of  these 
descriptions  of  cases  will  be  considered  in  its  turn. 

(e)  See  the  note  to  BiiUjher  v.  Stcnart,  [lOst  §  284. 


324  Collateral  Undeetakings.  [Ch.  ix. 


ARTICLE  11. 

Where  tlie  discharge  of  the  third  person's  deht  arose  hy  operation  of  law,  in  consequence  of  some 
act  or  omission  of  the  promisee,  without  his  express  assent  thereto. 

(1)   Where  the  promisee  discharged  the  third  person  from  arrest  under  a 
capias  ad  satisfaciendum. 

§  278.  It  is  well  settled,  that  where  the  defendant  in  a 
judgment  is  taken  upon  a  capias  ad  satisfaciendum,  such 
capture  amounts,  for  the  time  being,  to  a  satisfaction  of  the 
judgment ;  and  the  defendant' s  subsequent  discharge  from 
custody,  by  the  consent  of  the  plaintiff,  operates  in  law  as 
an  extinguishment  of  the  debt,  although  it  may  have  been 
merely  temporary,  and  the  facts  may  clearly  indicate 
that  the  intention  of  both  of  the  parties  was  quite  other- 
wise. The  principle,  that  an  extinguishment  of  the  orig- 
inal debt,  suffices  to  take  out  of  the  statute,  the  promise  of 
another  person  to  pay  it,  was  first  settled  in  England,  in  a 
case  where  the  debt  was  extinguished,  in  consequence  of 
such  a  discharge, 

§  279.  The  case  referred  to,  which  was  decided  in  the 
King's  Bench  in  the  year  1818,  is  Ooodman  v.  Chase^ 
1  Barnewall  and  Alderson,  297.  There  it  appeared  that 
the  plaintiffs,  having  recovered  a  judgment  against  the 
son  of  the  defendant,  sued  out  a  capias  ad  satisfaciendum, 
under  which  the  son  was  arrested  ;  that  he  applied  to  the 
plaintiffs'  attorney  for  time  to  get  the  money,  and  in  the 
mean  time  to  be  released  from  custody ;  to  which  the 
attorney  consented,  provided  the  defendant  in  this  action 
would  sign  a  written  paper,  which  the  attorney  delivered 
to  the  officer  for  the  purpose,  undertaking  that  he  would 
put  his  son  into  custody  of  the  sheriff  by  the  next  Satur- 
day, and  in  default  of  so  doing  that  he  would  pay  the 
damages  and  costs.  The  officer  went  with  the  paper  to 
the  defendant,  and  informed  him  of  what  the  attorney 
had  said ;  whereupon  the  defendant  signed  the  paper,  and 
the  officer  returned  it  to  the  attorney,  by  whose  consent 
the  son  was  then  discharged  from  custody ;  but  he  did 


Art.  II.]  Collateral  Undertakings.  325 

not  return  into  custody  by  the  Saturday.  Subsequently 
however,  and  on  the  return  day  of  the  writ,  the  son  offered 
to  surrenderhimself  in  discharge  of  the  defendant' s  agree- 
ment ;  but  the  plaintiffs'  attorney  refused  to  discharge  the 
defendant  on  those  terms  ;  whereupon  the  son  offered  to 
surrender  himself  to  the  sheriff,  who  refused  to  receive 
iiim.  In  an  action  upon  the  promise,  the  plaintiffs  had  a 
verdict,  subject  to  the  opinion  of  the  court ;  and  the  cause 
was  twice  argued,  the  first  argument  turning  chiefly  upon 
the  question,  whether  the  writing  was  sufficient  to  satisfy 
the  statute.  Upon  the  opening  of  the  second  argument, 
Lord  Ellenborough,  C.  J.,  said  that  it  was  unnecessary  to 
discuss  the  question  of  the  sufficiency  of  the  writing,  as  it 
appeared  to  the  court,  that  the  debt  had  been  discharged, 
by  the  plaintiffs  permitting  the  younger  Chase  to  go  out 
of  custody  ;  and  he  called  upon  the  defendant's  counsel, 
after  hearing  whom,  he  pronounced  the  judgment  of  the 
court  as  follows:  "By  the  discharge  of  Chase,  junior, 
with  the  plaintiffs'  consent,  the  debt,  as  between  those 
two  persons,  was  satisfied.  No  case  can  be  cited,  in  which 
such  a  discharge  has  not  been  held  quite  sufficient.  Then 
if  so,  the  promise  by  the  defendant  here  is  not  a  collateral 
but  an  original  promise,  for  which  the  consideration  is  the 
discharge  of  the  debt,  as  between  the  plaintiff  and  Chase, 
junior.  That  being  so,  it  becomes  wholly  unnecessary 
to  consider  the  question,  arising  out  of  the  construction 
of  the  fourth  section  of  the  statute  of  frauds." — Judg- 
ment for  the  plaintiff. 

§  280.  In  Lane  v.  Burgliart,  6  Jurist,  125,  decided 
A.  D.  1841,  (a)  it  was  held,  that  where  the  debtor  is  in  fact 
discharged,  the  undertaking  is  original,  although  it  assume 
the  form  of  a  guaranty  that  he  shall  pay  the  debt ;  as  he 
will  be  regarded  in  such  a  case  as  the  mere  agent  of  the 
promisor.     The  validity  of  the  promise  under  i\\Q  statute 


(a)  S.  C,  1  Gale  and  Davison,  311^  and  1  Queen's  Bench  Reports  (Adolpbus 
and  Ellis,  New  Series),  933. 


H26  COLLATEEAL    UNDERTAKINGS.  [Ch.   IX. 

was  not  directly  involved  in  the  de(;ision,  but  the  case  la 
nevertheless  quite  in  point  upon  that  question.  (6) 

§  281.  The  more  recent  case  of  Butcher  v.  George  Drum- 
mo  nd  Steuart,  11  Meeson  and  Welsby,  857,  decided  in 
the  Court  of  Exchequer,  A.  D.  1843,  (c)  is  remarkable,  not 
only  because  it  holds,  that  upon  a  question  of  this  kind, 
the  regularity  of  the  execution  and  of  the  arrest  cannot  be 
inquired  into  ;  but  because  it  is,  as  far  as  we  know,  the 
only  reported  decision,  expressly  holding  that  the  statute 

(h)  In  this  case,  the  plaintiSs  had  causeJ  one  Bacon  to  be  arrested  on  a 
ca.  sa.,  issued  upon  a  judgment  in  their  I'avor;  and  the  defendant,  on  the 
17th  of  November,  1838,  gave  a  written  agreement  addressed  to  them  in 
these  words:  "' (Title  of  the  judgment.)  Gentlemen  —  In  consideration  of 
your  discharging  the  defendant  out  of  custody  in  this  action,  I  undertake 
that  he  shall  pay  the  debt  due  to  you,  viz. :  275^.  125.,  together  with  interest, 
by  four  equal  half-yearly  instalments,  the  first  instalment  to  commence  and 
be  made  on  the  17th  day  of  May,  1839."  Within  a  few  days  after  receiving 
this  agreement,  the  plaintiffs  discharged  Bacon  from  custody.  In  an  action 
upon  this  agreement,  the  defence  was  that  on  the  19th  of  April,  1839  (the 
date  of  the  fiat),  the  defendant  became  bankrupt,  and  obtained  his  discharge 
in  the  following  August;  and  the  question  was  whether  the  debt  could  have 
been  proved  before  the  commissioners  and  valued,  under  a  clause  of  the 
statute,  providing  in  substance,  that  a  debt  payable  on  a  contingency  might 
be  so  proved;  it  being  also  provided  that  all  debts  which  might  be  proved 
before  the  commissioners,  should  be  barred  by  the  certificate.  On  the  part 
of  the  plaintiffs  it  was  contended,  that  this  was  not  a  debt  payable  by  the 
defendant  on  a  contingency,  nor  in  fact  any  debt  of  the  defendant ;  but  only 
a  liability  to  damages,  if  Bacon  should  fail  to  pay,  and  that  Bacon  had  not 
made  default  at  the  date  of  the  fiat.  But  a  verdict  having  been  rendered  for 
the  plaintiffs,  with  leave  to  the  defendant  to  move  to  enter  a  nonsuit,  a  rule 
nisi  to  enter  a  nonsuit  was  made  absolute.  Lord  Denman,  C.  J.,  delivering 
the  opinion  of  the  court,  said  :  "  It  was  argued  on  the  authority  of  Good- 
man V.  Chase,  that  this  undertaking  was  an  original  one,  on  the  part  of  the 
bankrupt,  to  pay  the  amount  of  the  sum  that  had  been  due  from  Bacon ;  and 
though  in  form  it  was  an  undertaking  that  Bacon  should  pay,  yet  at  most  it 
was  an  undertaking,  by  the  defendant,  to  pay  by  the  hands  of  Bacon.  On 
consideration  we  agree  that  this  is  correct;  the  unpaid  instalments  might 
therefore  have  been  estimated  and  proved  under  the  commission.  It  follows 
that  the  defendant's  certificate  is  a  bar  to  the  action." 

(c)  S.  C,  12  Law  Journal,  N.  S.,  Exch.,  391 ;  7  Jurist,  774 ;  1  Bowling  and 
Lowndes's  Practice  Reports,  308. 


Art.  II.]  Collateral  Undertakings.  327 

docs  not  api)ly,  to  a  promise  to  ]»ay  a  third  person's  debt 
to  the  promisee,  wliere  the  consideration  of  the  promise  is 
an  executory  contract  to  do  an  act,  whence  liis  discharge 
will  result.  The  action  was  assumpsit ;  and  the  de(!lara- 
tion  alleged  in  substance  the  recovery  of  a  judgment 
against  one  Robert  Steuart ;  the  arrest  of  Robert  by  virtue 
of  a  capias  ad  satisfaciendum  issued  thereon  ;  that  while 
Robert  was  in  custody,  ''in  consideration  that  the  plaint- 
iff would  procure  the  release  of  the  said  Robert  Steuart, 
from  and  out  of  the  said  custody  under  the  said  writ,"  the 
defendant  promised,  etc.  (according  to  the  writing  i)ro- 
duced  at  the  trial) ;  that  the  plaintiff,  confiding  on  the  said 
promise^,  did  then  "procure  the  release  of  the  said  Robert 
Steuart  from  and  out  of  the  said  custody,"  etc. ;  concluding 
with  an  averment  of  a  breach  and  of  damages.  Upon  the 
trial,  the  plaintiff  proved  the  recovery  of  a  judgment,  and 
the  arrest  of  Robert  Steuart,  as  alleged  in  the  declaration  ; 
that  on  the  next  day  George  Drummond  Steuart,  the 
defendant  in  this  action,  entered  into  a  written  undertak- 
ing in  the  form  of  a  letter  to  the  plaintiff,  in  which,  after 
reciting  the  title  of  the  judgment,  he  stated  that  "in  consid- 
eration of  your  having  released  the  above  named  definid- 
ant  from  custody,"  he  agreed  that  within  one  month  from 
the  date  of  the  writing,  he  would  pay  the  plaintiff  ^(K)l., 
and  hand  him  a  bond  for  the  remainder  of  the  debt,  inter- 
est and  €osts,  executed  by  the  defendant,  the  said  Robert, 
and  some  other  responsible  person,  payable  at  periods 
particularly  mentioned. 

§  282.  On  the  receipt  of  this  writing,  and  at  the  same 
interview,  the  plaintiff's  attorneys  gave  an  order  to  the 
sheriff,  to  discharge  Robert  Steuart  on  payment  of  the  fees, 
"judgment  having  been  satisfied."  The  fees  were  imme- 
diately i)aid  by  the  defendant;  and  the  sheriff's  officer 
then  said  that  Robert  was  free  as  to  that  suit ;  but  before 
discharging  lilm  from  actual  custody,  he  must  ascertain 
if  there  were  aii}'  detainers  lodged  against  him  ;  and  it 
being  discovered  that  there  were  two  detainers,  founded 
upon  other  judgments,  the  sheriff  refused  to  discharge  him. 


328  COLLATEKAL  UNDERTAKINGS.  [Ch.  IX. 

At  the  time  when  the  writing  was  executed,  and  the  order 
given,  Robert  Steuart  had  actually  taken  out  a  summons 
to  be  discharged  from  custody  as  to  this  action,  on  the 
ground  of  privilege,  as  a  member  of  Parliament ;  and  at 
a  subsequent  hour  of  the  same  day,  he  procured  a  judge''s 
order  to  be  discharged  from  this  execution  and  from  the 
detainers,  on  that  ground ;  and  the  sheriff  returned  the 
poundage  fees.  It  had  been  agreed,  however,  that  the 
discharge  should  not  affect  the  defendant' s  undertaking. 
It  appeared  also  that  the  execution  was  irregular,  it 
having  been  issued  to  Middlesex  without  any  previous 
writ  having  been  issued  to  Kent,  where  the  venue  was 
laid. 

§  283.  The  defendant  objected  to  a  recovery,  on  the 
ground  that  the  promise  was  void  under  the  statute  of 
frauds,  and  because  it  was  without  sufficient  considera- 
tion ;  and  also  upon  other  grounds,  presenting  questions 
of  variance  between  the  declaration  and  the  proofs,  only 
one  of  which  need  be  noticed  here.  It  was  substantially, 
as  developed  in  the  argument  and  the  opinion,  that 
whereas  the  declaration  alleged  that  the  consideration  of 
the  defendant' s  promise,  was  a  promise  on  the  part  of  the 
plaintiff  to  procure  the  release  of  Robert  Steuart,  the  proof 
consisted  of  a  writing,  reciting  that  such  a  release  had 
already  been  made.  There  was  a  verdict  for  the  plaintiff, 
subject  to  the  opinion  of  the  court,  for  the  full  amount  of 
the  debt  and  interest,  to  be  reduced  to  500?.,  etc.,  upon 
delivery  of  a  bond,  etc.,  with  a  consent  that  the  court 
might  draw  any  inferences  of  fact.  The  opinion  of  the 
Court  delivered  by  Parke,  B.,  and  concurred  in  by  the 
other  Barons  present,  was  in  favor  of  the  plaintiff  upon 
all  the  points  raised ;  and  judgment  was  accordingly 
entered  in  his  favor. 

§  284.  With  respect  to  the  question,  whether  the  promise 
was  void  under  the  statute  of  frauds,  the  opinion  said  that 
if  the  case  was  within  the  statute,  it  would  be  very  doubt- 
ful whether  the  writing  was  sufficient.    ' '  But, ' '  the  learned 


Art.  II.]  COLLATEKAL  UNDERTAKINGS.  329 

Baron  proceeded,  "it  appears  to  me  that  this  is  an  abso- 
lute promise,  in  consideration  of  the  agreement  to  dis- 
charge th«'  defendant  from  execution.  It  is  not  a  promise 
to  answ(!r  for  tlic  debt,  default  or  miscarriage  of  another  ; 
but  is  a  promise  to  pay  a  debt,  in  the  event  of  the  other 
contracting  party  doing  a  certain  act.  It  is  therefore 
within  the  decision  of  Goodman  v.  Chase^  and  does  not 
require  a  memorandum  in  writing  to  satisfy  the  statute  of 
frauds."  The  point  of  variance,  which  we  have  noted, 
was  disposed  of  by  saying  that  the  plaintiff's  engagement 
recited  in  the  memorandum,  might  be  construed  as  pros- 
pective ;  that  is  to  say,  it  was  not  inconsistent  with  the 
words,  to  construe  them  as  meaning  that  the  defendant 
would  pay  the  500Z.,  and  deliver  the  bond  at  the  expiration 
of  a  month,  in  consideration  of  the  plaintiff  having  then 
released  Robert  Stenart.  It  was  further  held  that  the 
irregularity  in  the  issuing  of  the  writ  was  not  material ; 
nor  was  it  important  to  inquire  whether  Robert' s  privilege 
protected  Mm  from  arrest ;  for  the  questions  affected  only 
the  consideration  of  the  defendant's  promise,  and  if  they 
should  be  decided  against  the  plaintiff,  there  was  ample 
consideration  in  the  plaintiff's  consent  to  an  immediate 
discharge,  without  putting  Robert  to  his  motion,  {d) 

(d)  The  extract  from  Lord  Wensley dale's  remarks,  quoted  verbatim  in  tlie 
text,  is  taken  from  the  report  in  the  11th  of  Meeson  and  "Welsby.  The 
Jurist  makes  the  corresponding  portion  of  his  opinion  commence  thus :  "  But 
it  appears  to  me  an  absolute  promise  to  discharge  a  defendant  from  execu- 
tion, and  falls  within  the  decision  of  Goodman  v.  Chase,  that  such  a  promise 
does  not  require,"  etc.  With  this  absurd  version  the  report  of  Bowling  and 
Lowndes  agrees.  The  Law  Journal,  equally  incorrect  in  another  direction, 
makes  his  Lordship  say  "  that  this  is  not  an  absolute  promise  to  discharge  a 
defendant  from  execution,"  etc.  But  the  four  reports  coincide  exactly,  in 
attributing  to  him  the  expression,  that  the  defendant's  promise  was  "  to  pay 
a  debt  in  the  event  of  other  contracting  party  doing  a  certain  act,"  and  this 
coincidence,  with  the  decisions  upon  the  questions  of  regularity  and  of  vari- 
ance, (including  another  question  of  variance,  not  noticed  in  the  text, 
which  was  decided  upon  grounds  entirely  similar,)  leave  no  room  for  doubt 
that  his  Lordship  did  intend  to  hold,  that  an  executory  contract  to  discharge 
a  debt,  would  sustain  a  stranger's  verbal  promise  to  pay  part  of  the  debt  in 
money,  and  to  join  with  the  debtor  in  a  bond  for  the  remainder.  This  is 
42 


330  COLLATEKAL   UNDERTAKINGS.  [Cll.  IX 

§  285.  The  rule  that  a  voluntary  discharge  of  a  defend- 
ant, arrested  on  a  capias  ad  satisfaciendum,  releases  the 


the  question  discussed  in  §§  275,  276,  ante,  to  which  we  now  recur,  after  exam- 
ination of  the  Enghsh  cases  where  it  arises,  with  the  exception  of  Emmet  v. 
Dewhurst,  3  Macnaghten  and  Gordon,  587,  which  our  arrangement  of  sub- 
jects required  us  to  place  in  the  next  chapter.  (See  §  342.)  In  the  earhcst 
of  these,  Goodman  v.  Chase,  ante,  §  279,  it  will  be  observed,  that  as  the 
sheriff's  officer  was  the  agent  of  the  plaintiff's  attorney,  and  took  the  defend- 
ant's agreement  in  that  character,  upon  a  promise  of  the  attorney  to  dis- 
charge the  judgment  debtor;  which  was  fulfilled  only  after  a  short  interval 
of  time,  it  may  be  made  to  appear,  by  a  very  minute  subdivision  of  time, 
that  the  plaintiff's  executory  agreement  formed  the  consideration  of  the 
defendant's  agreement,  which  was  sustained  as  being  founded  upon  the  dis- 
charge. But  the  interval  was  so  short,  and  the  transactions  were  so  closely 
connected  with  each  other,  that  doubtless  the  discharge  and  the  agreement 
would  be  regarded  in  law,  as  taking  effect  simultaneously.  In  Butcher  v. 
Steuart  the  facts  would  easily  admit  of  a  construction,  which  would  also  make 
the  discharge  and  the  agreement  take  effect  simultaneously ;  but  the  court 
precluded  that  construction,  by  its  decision  upon  the  questions  of  variance. 
To  avoid  these,  it  was  held  that  the  consideration  of  the  defendant's  agree- 
ment was  executory.  But  the  construction  put  upon  it  was  not  such,  as  to 
enable  the  plaintiff  to  maintain  his  action,  upon  an  allegation  of  tender  of  per- 
formance ;  on  the  contrary  the  court  held,  that  the  agreement  meant  that  the 
defendant  would  pay  the  money  and  hand  over  the  bond,  at  the  expiration  of 
the  month,  "in  the  event"  that  the  plaintiff  had  then  discharged  his  original 
debtor.  So  that  although  the  promise  was  made,  while  the  original  debtor  con- 
tinued to  be  liable,  there  was  no  obligation  to  perform  it,  till  he  should  be  dis- 
charged ;  and  therefore  there  was  no  moment  of  time,  when  the  defendant  and 
the  original  debtor  were  concurrently  liable  to  separate  actions.  On  the  other 
hand  in  Emmet  v.  Dewhurst,  where  it  was  held  that  the  promise  was  within 
the  statute,  the  agreement  provided  that  the  defendant's  guaranty  notes,  and 
the  discharge  by  the  bank,  should  be  delivered  simultaneously,  the  one  form- 
ing the  consideration  of  the  other;  so  that  upon  an  allegation  of  tender  of  a 
discharge  and  demand  of  performance,  the  plaintiff's  bank  could  have  main- 
tained an  action  for  damages  against  the  defendant,  without  impairing  its 
remedy  against  his  brother.  This  distinction  runs  very  fine;  but  it  seems 
to  afford  the  only  method  of  reconciling  the  cases,  and  to  furnish  the  true 
test  of  the  application  of  the  statute,  to  executory  agreements  of  this  charac- 
ter. The  same  distinction  will  remove  an  apparent  inconsistency  between 
the  more  modern  cases,  and  Chater  v.  Beckett,  7  Term  Reports,  201,  A.  D. 
1797;  Gaunt  V.  Hill,  1  Starkie,  10,  A.  D.  1815;  and  the  reasoning  of  the 
court,  particularly  of  Chambre,  J.,  in  Anstey  v.  Harden,  4  Bosanquet  and 
Puller,  124. 


Art.  11.]  Collateral  Undertakings.  331 

debt,  is  laid  down  in  numerous  American  cases ;  but  there 
appears  to  be  no  reported  decision,  where  such  a  discharge 
lias  been  expressly  held  to  take  out  of  the  statute  of 
frauds,  a  stranger's  promise  to  pay  the  debt.  The  prin- 
ciple, however,  abundantly  appears  in  the  cases  cited 
under  the  other  subdivisions  of  this  chapter,  (d) 

(2)  Where  the  promisee  discharged  a  levy  npov  the  third  person^ s  goods,  which 
had  been  made  under  a  fieri  facias  or  a  distress  warrant. 

%  286,  "Where  a  fieri  facias  or  a  distress  warrant  has  been 
levied  ujion  goods  sufficient  in  amount  to  discharge  it, 
the  general  rule  is  that  the  debt  is  suspended,  and  it  is 
even  said  in  some  cases  that  it  is  extinguished.  (/)  There 
is  accordingly  considerable  force  in  the  argument,  that  a 
promise  to  pay  the  debt,  made  by  a  stranger,  in  considera- 
tion of  the  release  of  the  goods  levied  on,  is  not  within 
the  statute  ;  at  least  if  the  value  of  the  goods  equals  the 
amount  of  the  debt. 


(e)  In  Cooper  v.  Chambers,  4  Devereux  (North  Carolina),  261,  the  original 
debtor  had  been  arrested  upon  a  ca.  sa.,  and  was  discharged  in  consideration 
of  the  defendant's  promise  to  "see  the  debt  paid  in  trade;"  but  although  it 
was  held  that  the  promise  was  not  within  the  statute,  the  court  assigned 
another  reason  for  its  decision,  namely,  that  ''there  Avas  a  new  and  original 
consideration  of  benefit  or  harm  moving  between  the  newly  contracting 
parties."  It  was  said  that  when  the  plainliDf  discharged  the  original  debtor, 
"  he  was  entirely  freed  from  the  debt  and  the  defendant  became  the 
debtor,"  but  this  was  mentioned  only  to  show,  that  although  the  defendant 
derived  no  benefit  from  the  promise,  the  plaintiff  suffered  harm  "by  giving 
up  those  advantages  with  which  the  law  had  invested  him  to  coerce  the  debt." 
See  also  Rice  v.  Barry,  2  Cranch,  C.  C,  447,  cited  hereafter.  For  the  general 
rule  that  a  debt  is  discharged  by  the  defendant's  release  from  arrest  on  a  ca.  sa., 
see  also,  among  other  cases,  Palethorpc  v.  Lasher,  2  Rawle  (Pennsylvania), 
272;  Lathrop  v.  Briggs,  8  Cowen  (New  York),  J71;  Ransom  v.  Keyes,  9 
Cowen,  128;  Howe  v.  Buffalo,  etc.,  R.  R.  Co.,  38  Barbour  (New  York), 
124. 

(/)  Mountney  v.  Andrews,  Croke  Elizabeth,  237;  Clerk  v.  Withers,  2 
Lord  Raymond,  1072,  11  Modern,  34,  Holt,  046,  and  1  Salkeld,  322;  Ex 
parte  Lawrence,  4  Cowen  (New  York),  417 ;  Jackson  v.  Bowen,  7  Cowen. 
13  ;   Ladd  v.  Blunt,  4  Massachusetts,  402. 


832  Collateral  Undertakings.  [Ch.  ix. 

§  287.  In  Edwards  v.  Kelly ^  6  Maule  and  Selwyn,  204, 
A.  D.  1817, (^)  it  was  held  that  the  defendants'  promise  to 
pay  the  amount  of  the  rent  in  arrear,  was  not  within  the 
statute,  where  a  distress  warrant  had  been  levied  on  the 
goods  of  the  tenant,  and  they  were  surrendered  to  one  of 
the  promisors  in  consideration  of  the  promise.  The  four 
judges  concurred  in  the  decision,  for  a  reason  which  prop- 
erly brings  the  case  within  another  class  ;  but  two  of  them 
also  thought  that  the  promise  should  be  sustained,  because 
the  debt  was  suspended  by  the  distress.  Bayley,  J.,  said 
that  after  the  plaintiff  had  distrained,  the  tenant  was  no 
longer  indebted,  and  that  the  statute  "was  aimed  at  cases 
where  a  debt  being  due  from  one  person,  another  engaged 
to  pay  it  for  him  ;  but  here,  for  the  reason  above  stated, 
at  the  time  when  the  promise  was  made,  the  debt  was  not 
owing  from  the  tenant."  And  Holroyd,  J.,  also  said,  that 
as  the  tenant  might  have  pleaded  the  distress,  in  an  action 
for  the  rent,  the  debt  was  for  the  time  suspended ;  and  the 
promise  was  therefore  to  pay  "a  debt,  which  at  that  time 
did  not  exist  as  a  debt  of  another." 

§  288.  The  facts,  in  Slingerland  v.  Morse,  7  Johnson 
(New  York),  463,  A.  D.  1811,  were  substantially  like  those 
in  Edwards  v.  Kelly,  as  far  as  they  raised  this  question ; 
but  the  goods  were  delivered  to  the  tenant.  There  also  the 
court  held  the  promise  to  be  original,  upon  the  ground 
which  chiefly  controlled  the  decision  in  the  former  case, 
although  it  is  now  ranked  among  those  where  the  princi- 
ple was  erroneously  applied.  {7i)  But  the  point  now  under 
consideration  was  not  suggested. 


ig)  Cited  more  at  length  in  chapter  sixteenth. 

{h)  It  is  true  that  Comstock,  0.  J.,  in  his  opinion  in  Mallory  v.  Gillett,  21 
New  York,  412  (on  page  424),  attempted  to  reconcile  Slingerland  v.  Morse 
with  the  cases  which  were  correctly  decided,  upon  the  hypothesis  that  the 
goods  were  delivered  to  the  defendants,  and  the  debt  was  discharged.  But 
as  we  read  the  case,  especially  with  the  assistance  of  the  report  after  the 
second  trial,  in  8  Johnson,  370,  the  goods  were  delivered  to  the  tenant;  and 
the  court  assumed  that  the  debt  was  not  discharged. 


Art.  II.]  COLLATEKAL  UNDERTAKINGS.  333 

§  289.  Among  the  American  cases  on  this  subject,  the 
decision  in  Tlndal  v.  Touchberry^  3  Strobhart  (South 
Carolina),  177,  A.  D.  1848,  was  x^^rtly  put  upon  this 
ground.  The  levy  was  under  a  domestic  attachment ;  and 
in  consideration  that  the  plaintiff,  who  was  the  officer 
holding  the  attachment,  would  deliver  the  property  to  the 
debtor  in  the  attachment,  the  defendant  verbally  promised 
that  the  property  should  be  returned  the  next  day,  or  he 
would  pay  the  debt ;  and  it  was  held  that  he  was  liable  for 
the  value  of  the  property,  it  being  less  than  the  debt.  The 
decision  was  principally  put  upon  the  ground,  that  the 
debtor  assumed  no  liability  for  the  property  ;  on  the  con- 
trary, he  was  resisting  the  levy ;  but  the  court  also  said 
that  where  the  original  debtor  was  discharged,  the  promise 
was  within  the  statute,  and  that  "the  proceeding  by 
attachment  is  a  proceeding  in  rem,  and  is  like  the  seizing 
of  goods  under  a  distress  warrant,  or  under  execution  ; 
a  presumptive  satisfaction,  until  the  goods  seized  are  sold 
or  are  accounted  for."(i) 

§  290.  But  most  of  the  American  cases,  where  the  defend- 
ant's  promise  was  made,  in  consideration  of  the  surrender 
of  a  levy  upon  the  goods  of  the  original  debtor,  were 
decided  upon  the  theory,  which  long  prevailed  here,  that 
the  statute  does  not  apply,  flf  the  promisee  surrendered  to 
the  debtor  a  lien,  available  for  the  collection  of  his  debt, 
even  though  the  debt  remained  in  full  force.  Indeed  this 
theory  was  regarded  as  a  corollary  from,  or  a  principle 
concurrent  with  a  much  broad<'r  doctrine ;  namely,  that 
whenever  the  promise  was  founded  upon  a  new  and  orig- 
inal consideration,  of  benefit  to  the  promisor  or  harm  to 
the  promisee,  it  was  without  the  statute.  (/)    There  are 

(t)  It  was  held  in  Martin  v.  England,  5  Yerger  (Tennessee),  313,  A.  D. 
1833,  that  a  verbal  agreement,  very  similar  in  its  character  to  that  which 
was  upheld  in  Tindal  v.  Touchberry,  was  void ;  but  the  decision  was  put 
upon  the  ground  that  the  Tennessee  statute,  relating  to  a  bond  for  the  deliv- 
ery of  property  leviod  upon,  avoided  a  verbal  agreement  to  that  effect. 
The  statute  of  frauds  was  not  alluded  to  in  the  opinion. 

(j)  These  doctrines,  both  of  which  are  now  exploded,  will  be  examined  in 
the  seventeenth  chapter. 


834  Collateral  Undertakings.  [Cii.  ix. 

consequently  but  few  cases,  where  the  effect  of  the  dis- 
charge of  such  a  levy,  has  been  considered  in  connection 
with  the  principle  now  under  examination.  But  vre  find 
a  series  of  decisions  in  the  New  York  Supreme  Court, 
which  may  perhaps  be  regarded  as  of  authority,  upon  the 
subject  of  this  discussion  ;  although  in  each  of  them  it  is 
quite  doubtful,  whether  any  such  question  was  ever  in  the 
mind  of  the  court. 

§  291.  The  first  of  these  is  Skelton  v.  Brewster,  8  John- 
son, 293,  A.  D.  1811.  There  it  is  said  in  the  report,  that 
the  plaintiff  recovered  a  judgment  and  "took  out  an 
execution  for  twenty-five  dollars  against  W.  S.  ; "  and 
that  W.  S.  delivered  all  his  household  goods  to  the 
defendant  in  this  action,  who  thereupon,  "in  considera- 
tion that  the  plaintifi"  would  discharge  the  said  W.  S. 
from  the  execution,  promised  to  pay  the  plaintiff  twenty- 
five  dollars."  A  judgment  for  the  plaintiff,  rendered 
in  a  justice's  court,  was  affirmed  upon  certiorari,  the 
Supreme  Court  saying  that  the  promise  was  not  within 
the  statute,  because  it  was  founded  "  on  a  new  and  distinct 
consideration,  which  was  the  delivery  of  the  goods  of  such 
person  and  the  plaintiff's  discharge  of  the  judgment."  It 
would  seem  from  the  reporter' s  statement  of  the  facts,  and 
the  language  of  the  court,  thai  the  execution  was  against 
the  person,  rather  than  the  property  of  the  original  debtor. 
But  in  a  subsequent  case  in  the  same  court  {Jc)  it  was  said 
that  the  execution  was  against  the  property.  If  so,  this 
case  is  perhaps  an  authority  for  the  proposition,  that  the 
discharge  of  a  levy  upon  goods,  by  virtue  of  an  execution, 
will  suffice  to  take  the  promise  out  of  the  statute  ;  but  not, 
we  are  inclined  to  think,  for  any  reason  connected  with 
the  present  discussion. 

§  292.  In  Mercein  v.  Andrus,  10  Wendell,  461,  A.  D. 
1833,  the  Supreme  Court  of  the  same  State  granted  a  new 

(Tc)  Parley  v.  Cleveland,  4  Cowen,  432,  where  Savage,  C.  J.  (on  p.  437) 
said  that  the  levy  was  upon  property,  and  that  the  distinctive  feature  of  the 
case  was  that  the  original  debtor  was  discharged. 


Art.  II.]  Collateral  Undertakings.  335 

trial,  upon  exceptions  taken  by  the  defendants,  to  certain 
rulings  of  the  judge  at  the  trial,  upon  points  not  connected 
with  the  statute  of  frauds  ;  but  there  was  also  an  exception 
to  a  ruling,  that  the  defendant's  promise  to  pay  a  certain 
sum,  being  part  of  the  amount  for  which  a  judgment  had 
been  recovered  by  the  plaintiff  against  one  Reed,  was  not 
within  the  statute,  because  it  was  founded  upon  the  release 
of  certain  goods  of  Reed,  levied  upon  under  an  execution 
issued  upon  the  judgment.  With  respect  to  that  excep- 
tion, Savage,  C.  J.,  delivering  the  opinion  of  the  court, 
said  :  "  The  judge  correctly  stated  to  the  jury,  that  where 
the  promise  of  one  person  to  pay  the  debt  of  another,  was 
founded  upon  the  consideration  of  surrendering  property 
levied  on  by  an  execution,  the  promise  was  an  original 
undertaking,  and  need  not  be  in  writing  to  be  valid  :  that 
it  was  not  vdthin  the  statute  of  frauds.  Whether  the 
evidence  proved  such  a  case  was  submitted  to  the  jury."(Z) 

§  293.  But  in  Stern  v.  DrinTcer,  2  E.  D.  Smith,  401, 
A.  D.  1854,  the  New  York  Common  Pleas  expressly  held, 
that  the  release  of  a  sufficient  levy,  under  an  execution 
against  property,  would  not  take  a  stranger's  promise  to 
pay  the  debt  out  of  the  statute.  The  action  was  originally 
brought  in  a  justice's  court,  and  the  complaint  alleged 
that  the  plaintiff  had  recovered  a  judgment  against  on(» 

(?)  Mercein  v.  Andrus  was  also  commented  upon  in  21  New  York,  424, 
425;  where  Comstock,  C.  J.,  after  referring  to  the  fact  that  what  was  said 
upon  this  point  was  obiter,  because  a  new  trial  was  granted  upon  another 
point,  said  that  if  "the  charge  at  the  trial  and  the  observation  of  the  Chief 
Justice  assumed,  as  the  law  was,  that  the  levy  of  an  execution  extinguished  the 
debt,  and  that  the  release  of  the  levy  remitted  the  creditor  to  the  new 
promisor  as  his  only  remedy,  then  the  remark  was  strictly  correct." 
"  Such,"  added  the  learned  Chief  Justice,  "  is  probably  the  true  explana- 
tion." The  principle  of  this  ruling  in  Mercein  v.  Andrus  was  also  recog- 
nized in  Van  Slyck  v.  Pulver,  Hill  and  Denio,  47,  A.  D.  1843,  but  without 
any  explanation  of  the  grounds  upon  which  it  rested;  the  court  distinguish- 
ing it  from  the  case  then  at  bar,  on  the  ground  that  upon  the  most  favorable 
aspect  of  the  testimony,  the  surrender  of  the  goods  was  made  in  considera- 
tion of  another  agreement,  and  not  the  one  sued  upon ;  so  that  the  latter 
was  nudum  pactum. 


336  Collateral  Undertakings.  [Cli.  ix. 

JsTusbann,  and  had  issued  execution  thereon,  which  had 
been  levied  upon  property  sufficient  to  satisfy  it ;  and  in 
consideration  of  his  abandoning  the  levy,  and  delivering 
the  property  to  the  debtor,  the  defendant  undertook  to 
pay  the  amount  of  the  judgment.  To  this  complaint  the 
plaintiff  demurred,  and  the  court  below  gave  judgment 
for  the  defendant.  Upon  the  argument  of  the  appeal,  it 
was  admitted  by  counsel  on  both  sides,  as  it  was  evidently 
assumed  by  the  court  below,  that  the  promise  was  not  in 
writing,  although  the  complaint  did  not  so  state  ;  and  the 
Common  Pleas  decided,  under  the  circumstances,  to  fol- 
low the  same  assumption,  denying  costs  to  the  plaintiff  on 
the  reversal,  which  was  adjudged  on  account  of  a  techni- 
cal irregularity.  Ingraham,  First  Judge,  delivered  an 
opinion  upon  the  merits  ;  in  which  he  contended  that  the 
promise  was  within  the  statute,  upon  the  ground,  that 
a  new  consideration,  moving  between  the  promisor  and 
the  promisee,  would  not  take  a  promise  out  of  the 
statute,  where  the  original  debt  was  not  discharged. 
Here,  he  said,  the  promise  to  pay  the  amount  of  the  judg- 
ment, "did  not  relieve  Nusbaun  from  liability."  "  In  the 
present  case,  the  original  debt  remained ;  the  property 
was  given  up  to  the  debtor,  and  not  to  the  defendant ;  the 
defendant  received  no  property,  and  owed  no  debt  which 
he  promised  to  pay  the  plaintiff ;  but  simply  in  considera- 
tion of  the  plaintiff's  relinquishing  to  the  debtor  the 
debtor' s  property,  he  promised  to  pay  the  debtor' s  debt. 
I  cannot  imagine  a  promise  to  pay  the  debt  of  another, 
if  the  one  under  consideration  is  not  one."  The  atten- 
tion of  the  court  was  evidently  confined,  to  the  terms  of 
the  actual  express  agreement  between  the  parties ;  the 
question  whether,  under  all  the  circumstances,  the  law 
would  not  imply  a  discharge  of  the  debt,  without  an 
expre-ss  agreement  to  that  effect,  not  having  been  sug- 
gested, (w) 

(ni)  The  rules  laid  down  by  the  New  York  courts,  touching  the  effect  of  a 
sufiBcient  levy  under  a  fieri  facias,  go  so  far  as  to  make  it  very  nearly  equiva- 
lent to  an  arrest  under  a  ca.  sa.     It  has  been  said  in  several  cases,  that  such 


Art.  III.]         Collateral  Undertakings.  337 


ARTICLE  III. 

Where  an  abandonment  of  the  third  person's  liability  is  inferred,  as  matter  of  fact,  from  Bome 
aot  or  omission  of  the  promisee,  without  any  agreement  to  that  effect. 

(1)    Oencral  principles  upon  which  the  application  of  the  statute  to  this 
description  of  cases  is  determined. 

§  294.  The  cases  witliin  this  class  consist  almost  exclu- 
sively of  those,  where  an  executory  contract  had  been 
made  between  the  promisee  and  the  third  person,  for  the 
performance  of  services,  or  the  sale  of  property,  to  the  third 
person  by  the  promisee,  for  a  reward  to  be  paid  to  the 
latter ;  and  the  promisor  undertook,  without  any  express 
rescission  of  the  contract,  that  if  the  promisee  would 
perform  the  services,  or  furnish  the  articles  for  which  it 
provided,  he  would  pay,  either  their  value  or  the  contract 
price.  Unless  the  circumstances  are  such,  as  to  bring  the 
case  within  some  of  the  rules,  whereby  promises,  Avhich 
are  confessedly  in  form  to  answer  for  the  debt  of  another, 
are  taken  out  of  the  statute,  because  they  are  not  within 
its  spirit,  it  is  manifest,  upon  a  mere  statement  of  the  case, 
that  the  only  theory  upon  which  a  verbal  promise  of  that 
character  can  be  upheld,  is  that  the  old  contract  was  dis- 
connected from  the  new.  Occasionally  it  may  happen,  that 
the  facts  show,  that  the  parties  to  the  new  contract  merely 
stipulated  for  the  performance  of  the  same  acts,  for  which 
the  old  contract  provided,  without  reference  to  the  question 

a  levy  extinguishes  the  judgment;  and  it  has  been  held,  that  if  after  a  levy 
the  execution  be  returned  unsatisfied  by  direction  of  the  plaintiff,  a  pur- 
chaser of  real  estate,  under  a  new  execution,  will  get  no  title,  unless, 
perhaps,  where  he  had  no  notice.  Jackson  v.  Bowen,  7  Cowen,  13.  Also, 
that  after  a  sufl&cient  levy  upon  personal  property,  the  judgment  ceases 
to  be  a  lien  on  real  estate ;  and  while  the  personal  property  remains 
unsold,  the  judgment  creditor  has  no  right  to  redeem  real  estate,  from 
a  sale  under  a  previous  execution.  Ex  parte  Lawrence,  4  Cowen,  417. 
However  where  a  levy  has  been  made,  and  subsequently  abandoned  at  the 
request  of  the  defendant  in  the  execution,  there  is  no  satisfaction  of  the 
judgment,  and  a  new  execution  may  issue.  Ostrander  v.  Walter,  2  Hill,  329. 
Here  is  the  distinction,  if  any  exists,  between  a  promise  founded  upon  a 
discharge  from  arrest,  and  one  founded  upon  the  release  of  a  levy. 
43 


338  COLLATEEAL   UNDERTAKINGS.  [Ch.  IX. 

wlietlier  that  was  to  be  fulfilled  or  not.  In  snch  cases,  the 
statute  has  no  application ;  for  then  it  is  immaterial  whether 
the  old  contract  remained  in  force  or  otherwise.  But  in 
general  it  is  entirely  clear,  that  the  parties  could  not  have 
contemplated  the  performance  of  both  the  contracts ;  and 
whenever  this  occurs,  the  two  can  be  disconnected  only  by 
the  abandonment  of  the  first ;  and  the  question  whether  it 
was  or  was  not  abandoned,  becomes  the  turning  point, 
upon  which  the  application  of  the  statute  depends. 

§  295.  In  the  next  chapter,  we  shall  refer  with  some  par- 
ticularity to  the  civil  law  doctrine  of  novation,  of  which 
this  species  of  substitution  forms  a  part.  It  is,  according 
to  the  rules  which  prevail  in  the  civil  law,  one  of  the  ways 
in  which  may  be  effected  that  kind  of  novation  called  "ex- 
promissio,"  being  the  intervention  of  a  new  debtor,  in 
place  of  him  who  is  already  bound.  Other  instances  of  the 
same  process  will  be  given  in  the  next  chapter ;  being  cases 
where  an  antecedent  liability  of  a  third  person  was  dis- 
charged, by  mutual  agreement  between  him,  the  creditor 
and  the  new  promisor,  in  consideration  of  its  assumption 
by  the  latter.  The  feature,  wherein  that  process  of  extinc- 
tion of  the  original  liability,  differs  from  the  one  now  to  be 
considered,  is  that  in  this  class  of  cases,  the  person  origin- 
ally bound  was  not  a  consenting  party  to  the  transaction ; 
a  fact  which  gives  rise  to  some  significant  distinctions,  not 
only  with  respect  to  the  application  of  the  fourth  rule,  but 
also  with  respect  to  the  efiect  of  these  cases,  upon  an 
important  question,  hereafter  to  be  discussed,  arising  in 
connection  with  the  eighth  rule. 

§  296.  Although,  as  it  would  seem,  the  civil  law  permits 
a  substitution  of  one  debtor  for  another,  to  be  made  in 
some  cases,  without  the  concurrence  or  consent  of  the 
original  debtor,  (a)  such  is  not,  strictly  speaking,  the  rule 


(a)  Pothier  on  Obligations,  part  3,  chapter  2,  article  4,  section  5;  Evans's 
Translation,  volume  1,  page  562.  The  reason  is  said  to  be  that  "Ignorantis 
enim  et  inviti  conditio  melior  fieri  potest." 


Art.  III.]         Collateral  Undertakings.  339 

of  the  common  law,  which  requiivs  two  parties  to  dis- 
charge a  contract,  as  well  as  to  make  it.  At  common  law 
no  act,  to  which  both  the  original  contractors  have  not 
become  parties  in  some  form,  can  be  pleaded  hy  either  as 
a  discharge  of  the  obligation  of  the  contract,  in  an  action 
by  the  other  to  enforce  it ;  even  although  it  may  have 
been  the  act  of  the  plaintiff  himself.  But  a  party  may 
disqualify  himself  from  enforcing  a  contract,  against  the 
other  party  to  it,  by  acts  which  will  prevent  him  from 
making  that  proof  of  performance,  or  of  readiness  to  per- 
form on  his  part,  which  is  essential  to  his  right  to  maintain 
an  action  founded  upon  it.  When  such  acts  are  accom- 
panied by  the  promise  of  another  person  to  respond,  in 
consideration  of  the  promisee  rendering  the  same  services, 
or  furnishing  the  same  property,  which  formed  the  sub- 
ject-matter of  the  original  contract,  the  latter' s  abandon- 
ment of  the  contract,  and  election  to  rely  exclusively  upon 
the  new  promise,  may  properly  be  inferred  ;  and  although 
he  would  be  liable  in  damages  to  the  other  party,  in  con- 
sequence of  his  refusal  to  fulfil  it,  he  would  have  no 
remedy  for  the  services  or  property,  except  against  the 
promisor.  Hence,  as  far  as  this  question  is  involved,  the 
practical  effect  of  such  conduct  ought  always  to  be,  and  in 
general  is  the  same,  as  if  the  contract  had  been  rescinded 
by  consent  of  both  the  parties  to  it. 

§  297.  All  the  cases  in  this  class  agree,  that  the  test  of 
the  application  of  the  statute  is,  whether,  upon  the  per- 
formance of  the  new  contract  by  the  promisee,  he  could 
recover  against  the  original  contractor.  (/;)  Sometimes  it 
is  said  to  be,  whether  the  promisee  has  made  himself 
liable  to  the  original  contractor,  for  damages,  in  conse- 
quence of  his  non-fulfilment  of  the  original  contract;  a 
proposition  which  is  frequently  the  correlative  of  the 

(b)  See,  in  addition  to  the  authorities  hereafter  cited,  Puckettv.  Bates,  4 
Alabama,  390;  Ellison  v.  Jackson  Water  Company,  12  California,  542; 
Andre  v.  Bodman,  13  Maryland,  241 ;  Newell  v.  Ingraham,  15  Vermont, 
422 ;  Larson  v.  Wymau,  14  Wendell,  246. 


340  Collateral  Undertakings.  [Ch.  ix. 

other,  but  not  always  so ;  because  cases  may  occur,  where 
performance  was  optional  on  the  part  of  the  promisee,  or 
where  the  other  party  to  the  contract  had  made  a  previous 
default. 

§  298.  When  the  language  and  the  acts  of  the  parties 
leave  room  for  doubt,  whether  in  fact  the  existing  contract 
was  abandoned ;  or  whether,  on  the  other  hand,  the  new 
contract  was  such  as  to  leave  the  former  one  in  force,  and 
to  add  the  credit  of  the  new  party  to  that  of  the  original 
contractor,  as  security  for  its  fulfilment ;  questions  often 
arise,  which  are  very  analogous  to  those  presented  upon 
the  sale  of  goods,  the  loan  of  money,  or  the  performance 
of  services  for  the  benefit  of  one  person,  upon  a  promise 
to  respond  by  another,  and  are  to  be  disposed  of  in  the 
same  way.  Whether  the  language  used  imports,  as  matter 
of  law,  an  original  or  collateral  contract;  how  far  the 
province  of  the  jury  extends,  when  the  language  is  of 
doubtful  meaning;  the  principles  upon  which  to  deter- 
mine whether  credit  was  given  solely  to  the  promisor ;  the 
relevancy  of  certain  facts  as  evidence  upon  that  issue  ;  and 
various  other  similar  questions,  are  substantially  identical 
in  both  classes  of  cases.  On  this  account,  the  two  are 
frequently  confounded  ;  cases  belonging  to  this  class  being 
treated,  as  if  they  belonged  to  the  other.  But  this  is 
manifestly  an  error ;  for  the  points,  in  which  both  are  alike, 
are  merely  subordinate  and  incidental  to  the  determina- 
tion of  the  principal  question,  constituting  the  crucial  test 
of  the  application  of  the  statute ;  and  this  is  entirely 
different  in  the  two  classes.  In  one,  it  is  whether  the  third 
person  incurred  any  liability  upon  the  original  contract ; 
in  the  other,  whether  he  was  discharged  from  a  liability 
which  he  had  previously  incurred.  Another  striking 
point  of  diff'erence  between  them  is,  that  it  almost 
invariably  happens,  in  this  class  of  cases,  that  the  prom- 
isor is  the  person  to  be  benefited  by  the  consideration 
of  the  promise,  whereas  the  other  depends  upon  the 
fact  that  the  third  person  received  the  benefit  of  the 
consideration. 


Art.  III.  J         Collateral  Undertakings.  341 

§  299.  But  mucli  of  what  was  said  under  the  third  rule, 
upon  these  subordinate  points,  is  closely  applicable  to  the 
kindred  questions  arising  under  this  rule  ;  and  the  reader 
is  therefore  referred  to  the  places,  where  the  former  liave 
been  fully  discussed,  upon  principle  and  authority,  (c)  A 
few  cases  belonging  to  this  class,  where  some  of  those 
questions  were  presented,  under  circumstances  calling  for 
special  notice,  are  appended. 

§300.  In  WarnickY.  Grosliolz^  3  Grant's  Cases  (Penn- 
sylvania), 234,  A.  D.  1858,  the  plaintiffs  had  commenced 
painting  certain  cottages,  belonging  to  the  defendant,  under 
a  contract  between  them  and  one  Barber,  a  builder,  who 
had  a  contract  with  the  defendant,  for  building  and  finish- 
ing the  cottages,  and  Barber  was  to  pay  the  plaintiffs  by 
doing  certain  work  for  them  ;  he  failed  to  do  the  work  for 
the  plaintiffs ;  and  they  thereupon  stopped  their  work 
upon  the  cottages,  saying  to  the  defendant  that  "with 
Grosholz,  the  owner,  they  had  no  contract,  and  of  course 
were  not  bound  to  go  on  ;"  to  which  the  defendant  made 
answer,  "Go  on  with  the  work ;  that  he  had  security  for 
the  building,  and  he  would  see  it  paid."  The  judge  at 
the  trial  referred  the  words  to  the  jury,  "to  say  whether 
they  imported  a  direct  undertaking  or  a  guaranty  ; ' '  and 
the  plaintiffs  having  had  a  verdict,  the  judgment  thereon 
was  affirmed  on  error,  the  court  holding  that  the  meaning 
of  the  words  was  properly  referred  to  the  jury.(6Z) 

§  301.  So  also  in  Payne  v.  Baldwin,  14  Barbour  (New 
York),  570,  A.  D.  1853.  There  the  plaintiff  had  entered  into 
a  contract  with  one  Stebbins,  to  furnish  the  marble  and 
plaster  to  be  used  in  the  erection  of  certain  houses,  upon 
which  Stebbins  was  doing  the  mason  work  under  a  con- 
tract with  an  insurance  company ;  and  a  dispute  having 
arisen  between  the  plaintiff  and  Stebbins,  respecting  the 
amount  due  to  the  plaintiff  for  materials  previously  fur- 

(c)  See  chapters  sixth  and  seventh. 

(d)  See  the  case  also  cited,  ante,  §§  181,  182. 


342  Collateral  Undertakings.  [Ch.  ix. 

nished  by  him,  lie  refused  to  furnish  any  more  of  the 
materials  ;  whereupon  the  defendant,  who  was  president  of 
the  company,  told  the  plaintiff's  agent  "to  go  on  and  fur- 
nish the  stuff,  and  he  would  see  it  was  paid  for. ' '  The  action 
was  to  recover  for  materials  subsequently  furnished,  and 
a  referee  having  reported  in  favor  of  the  plaintiff,  the 
report  was  set  aside  as  against  the  weight  of  evidence  ;  on 
the  ground  that  Stebbins  was  liable  for  the  materials,  and 
the  whole  credit  was  not  given  to  the  defendant.  This 
the  court  thought  was  apparent,  from  the  following  facts  : 
"that  the  buildings  were  not  tlie  property  of  the  defend- 
ant ;"  "  that  when  the  materials  were  delivered,  the  receipts 
were  signed  by  Stebbins  and  that  the  accounts  in  the  defend- 
ant's"  (plaintiff's)  "books  were  continued  against  Steb- 
bins the  same  as  before,  and  that  no  charge  was  made 
against  the  defendant,  and  it  finally  appeared  that  the 
insurance  company  paid"  (doubtless  Stebbins)  "for  the 
building  of  the  houses." 

§  302.  Again  in  Noyes  v.  Humphreys^  11  Grattan  (Vir- 
ginia), 636,  decided  A.  D.  1854,  the  defendant's  testator 
had  leased  his  salt  works  to  one  Thompson,  who  had 
undertaken  to  make  certain  improvements  thereon,  to  aid 
in  which  the  defendant' s  testator  was  to  advance  to  him  cer- 
tain sums ;  and  the  plaintiff  had  been  employed  by  Thomp- 
son to  do  part  of  the  work ;  but  the  plaintiff,  after  he  had 
partly  completed  the  work,  "apprehending  that  Thomp- 
son would  not  pay  him,  stopped  his  work,  and  refused  to 
proceed  with  it  under  his  contract  with  Thompson;" 
whereupon  the  defendant' s  testator  went  to  him  and  said, 
"  The  work  is  now  commenced  ;  it  must  go  on.  Go  on  and 
finish  it ;  I  will  pay  you  for  it,"  or  "I  will  see  you  paid." 
The  plaintiff  then  resumed  his  work  and  completed  it ;  the 
defendant' s  testator  attending  to  its  execution,  and  giving 
directions.  The  plaintiff  then  rendered  his  account  to 
Thompson ;  and  after  deducting  certain  payments  made 
by  the  latter,  during  the  progress  of  the  work,  he  took 
Thompson's  bond  for  the  balance;  and  subsequently 
applied  for  the  benefit  of  an  insolvent  act,  returning  the 


Art.  III.]         Collateral  Undertakings.  343 

debt  in  his  schedule  as  owing  by  Thompson,  and  saying 
nothing  about  any  demand  against  the  defendant.  At 
the  trial  the  plaintiff  had  a  verdict,  various  exceptions 
having  been  taken  by  the  defendant,  calculated  to 
present  the  question  whether  the  promise  was  within 
the  statute  of  frauds.  The  judgment  rendered  upon  the 
verdict  was  reversed  in  the  Court  of  Appeals ;  partly 
because  the  court  thought  that  even  if  the  promise 
was  valid,  as  to  the  work  thereafter  to  be  done,  it  would 
be  within  the  statute ;  inasmuch  as  it  was  entire,  and 
related  also  to  work  previously  done.  But  the  court  also 
took  the  distinct  ground,  that  as  to  the  work  thereafter 
to  be  done,  the  evidence  tended  to  show  that  Thompson 
continued  to  be  liable  upon  his  contract  with  the  plaintiff, 
notwithstanding  the  defendant' s  promise,  and  the  comple- 
tion of  the  work  in  consequence  thereof;  the  instructions, 
given  and  refused  at  the  trial,  having  failed  to  lay  down 
clearly  the  rule  of  law,  that  in  such  a  case  the  defendant'  a 
promise  to  pay  for  that  work  was  within  the  statute. 

§  303.  But  the  principle  upon  which  the  last  case  was 
decided,  was  perhaps  pushed  beyond  its  true  limits,  in 
the  recent  case  of  Bresler  v.  Pendell,  12  Michigan,  224, 
A.  D.  1864.  There  one  C.  E.  B.  had  made  a  contract 
with  one  St.  Amour,  for  the  erection  by  St.  Amour  of  a 
block  of  buildings ;  and  the  latter  had  sub-let  part  of  the 
work  to  the  plaintiff.  After  such  sub-letting  the  plan 
of  the  block  was  twice  changed,  in  certain  particulars 
tending  to  increase  the  expense  of  erection.  The  plaintiff 
commenced  the  work;  but  St.  Amour  twice  failed  to 
make  the  payments  stipulated  for  by  his  agreement 
with  the  plaintiff ;  and  on  each  occasion,  as  the  report 
says,  the  plaintiff  "abandoned  said  job,  and  refused  to 
proceed  further  with  the  same ;  that  on  both  of  said  occas- 
ions, the  defendant  requested  said  plaintiff  not  to  abandon 
said  job,  and  promised  him  that  if  he  would  continue  the 
same  to  completion,  he,  the  said  defendant^  would  pay 
him,  or  would  see  him  paid."  Under  this  promise,  the 
plaintiff  on  each  occasion  resumed  his  work,  and  finally 


344  COLLATEEAL   UNDERTAKINGS.  [Cll.  IX 

completed  it ;  the  defendant  being  frequently  present,  and 
giving  directions,  while  the  work  was  going  on.  These 
facts  were  found  by  a  referee,  who  also  found  ' '  that  the 
said  original  contract  between  St.  Amour  and  the  plaintiff 
was  still  in  existence  and  uncancelled;"  that  the  extra 
work  (the  nature  and  value  of  which  were  detailed  in  his 
report),  was  not  included  in  the  contract  between  the 
plaintiff  and  St.  Amour  ;  that  it  was  done  at  the  request 
of  the  defendant;  and  that  the  defendant  promised  to 
pay  therefor.  It  was  held  by  the  referee  and  the  court 
below,  that  the  defendant  was  not  liable  for  so  much  of 
the  work,  as  was  included  in  the  contract  between  the 
plaintiff  and  St.  Amour ;  but  that  he  was  liable  for  the 
value  of  the  extra  work,  and  judgment  was  rendered  for 
that  only. 

§  304.  The  defendant  brought  a  wi'it  of  error,  and  the 
judgment  was  reversed,  the  Supreme  Court  holding  that 
there  could  be  no  discrimination  between  the  work  men- 
tioned in  the  contract,  and  the  extra  work.  Manning,  J., 
said  that  if  either  was  done  on  the  defendant' s  promise, 
"it  was  not  on  his  sole  promise,  but  on  his  promise  in 
connection  with  the  previous  promise  of  St.  Amour;"  for 
which  reason,  if  the  defendant' s  engagement  was  supported 
by  any  consideration,  it  should  have  been  in  writing  ;  and 
that  if  the  plaintiff  abandoned  the  work,  because  St. 
Amour  did  not  pay  him,  and  afterwards  resumed  it  on 
the  defendant's  promise,  the  evidence  showed  that  he 
looked  to  St.  Amour  for  his  pay,  and  not  to  the  defend- 
ant, except  as  a  surety  or  a  guarantor.  The  nature  of  tliis 
evidence  is  not  stated  in  the  report ;  but  if  it  supported 
the  referee' s  conclusions  of  fact,  it  is  difficult  to  see  upon 
what  principle,  a  finding  in  favor  of  the  plaintiff,  for  the 
whole  amount  of  his  demand,  could  have  been  properly 
set  aside.  With  respect  to  the  extra  work,  there  is  nothing 
to  show  (although  a  large  portion  of  the  finding  is  given 
verbatim)  that  St.  Amour  made  any  promise  to  pay  for  it. 
The  decision  was  probably  put  upon  the  groi\ind,  that  the 
referee' s  finding  was  against  the  weight  of  evidence. 


Art.  III.]         Collateral  Undertakings.  346 

§  305.  It  seems  to  be  settled  tliat  a  jury,  undc^r  proper 
instructions  from  the  court,  may  find  an  abandonment  of 
the  original  contract,  from  tlie  mere  declarations  of  the 
promisee  to  that  effect,  not  communicated  to  tlie  other 
party ;  although  he  has  subsequently  perfoiTned  precisely 
the  acts  for  which  the  original  contract  provided,  and 
would  be  entitled  to  recover  against  the  original  con- 
tractor, but  for  the  fact  that  they  were  not  performed  in 
fulfilment  of  the  contract.  This  doctrine  is  strikingly 
illustrated  by  the  decision  of  the  Supreme  Court  of  Ver- 
mont in  Sinclair  v.  Richardson^  12  Vermont,  33,  A.  D. 
1840.  There  it  appeared  that  the  plaintifi"  had  entered 
into  a  written  contract  with  one  Upson ;  whereby  he  was 
to  provide  the  materials  and  do  the  work,  upon  a  house 
which  was  in  the  course  of  erection,  on  land  of  the  defend- 
ant ;  that  in  1831,  he  erected  the  frame  of  the  house  and 
partly  inclosed  it ;  that  in  the  spring  of  1832,  when  about 
to  complete  the  work,  the  plaintifi"  said  to  the  defendant, 
in  substance,  that  he  would  do  nothing  more  to  the  house, 
unless  the  defendant  would  agree  to  pay  him  ;  and  the 
defendant  answered,  "  Do  you  go  on  and  finish  the  house, 
and  I  will  pay  you  for  it,  or  see  you  paid."  Whereupon 
the  plaintiff  completed  the  work  ;  but,  the  report  says,  the 
original  contract  between  Upson  and  the  plaintiff  was  still 
in  force  and  unrescinded.  At  the  trial  the  judge  charged 
the  jury,  that  the  promise  of  the  defendant  was  void  by 
the  statute  of  frauds  ;  and  a  verdict  and  judgment  having 
been  rendered  for  the  defendant,  the  cause  came  on  to  be 
heard  upon  exceptions  to  the  ruling.  Tlie  judgment  was 
reversed,  on  the  ground  that  it  should  have  been  left  to 
the  jury  to  say,  whether  the  contract  with  Upson  had  been 
wholly  abandoned  by  the  plaintiff  or  not ;  and  whether  the 
defendant' s  undertaking  was  original  or  collateral,  (e) 


(e)  This  case  came  very  near  the  dividing  line;  but,  upon  the  whole,  it 
appears  that  the  jury  might  have  inferred  such  an  abandonment  of  the  con- 
tract with  Upson,  as  would  prevent  the  plaintiff  from  recovering  against 
him.  In  an  action  against  him,  he  might  have  shown  that  although  the 
work  was  done  according  to  the  coiitract,  it  was  not  done  upon  the  coutract, 
44 


346  Collateral  Undertakings.  [Cli.  ix, 

§  306.  But  this  doctrine  is  subject  to  the  qualification, 
that  the  original  contract  must  have  been  of  such  a  nature, 
that  the  promisee's  claim  to  compensation  thereunder 
could  be  abandoned  by  mere  words,  without  also  abandon- 
ing the  performance  of  the  acts  for  which  it  provided.  Thus 
if  an  attorney  has  been  employed  to  conduct  an  action  or 

but  upon  another  contract  with  the  defendant  in  this  suit.  As  the  book  is 
scarce,  and  the  opinion  of  Collamer,  J.,  presents  very  clearly  and  correctly 
the  principles  which  govern  this  class  of  cases,  we  insert  it  nearly  at  length. 
"  When  a  contract  is  once  made,  it  cannot  be  rescinded  but  by  consent  of 
both  parties.  But  it  does  not  follow  that  because  a  man  has  entered  into  a 
contract,  and  entered  upon  its  performance,  he  may  not  utterly  abandon  and 
decline  to  perform  it.  If  he  does  so,  it  still  remains  unrescinded  and  in 
force  against  him,  and  damages  may  be  recovered  for  his  non-performance, 
yet  he  can  have  no  action  thereon.  He  may,  from  the  employer  having 
become  insolvent,  refuse  to  proceed  without  a  guaranty  of  his  credit;  but 
he  can  enforce  no  such  guaranty  unless  it  be  in  writing,  as  it  is  collateral. 
He  may,  from  a  consideration  that  the  employer  has  become  insolvent,  or  ab- 
sconded, or  otherwise  become  wholly  irresponsible,  entirely  decline  to  proceed 
any  further  on  the  contract  with  him,  preferring  to  lose  what  he  has  done, 
to  completing  the  contract  and  losing  all.  I.'',  in  this  case,  a  person  make  an 
entire,  substantive,  independent  contract  with  him,  to  perform  the  same  ser- 
vice, this  may  be  enforced  though  not  in  writing,  as  i  is  not  collateral. 
Whether  the  new  contract  be  auxiliary  or  independent  is  a  question  of  fact. 
If  the  terms  used  on  the  occasion  clearly  imply  that  the  former  contract  is 
to  continue,  and  the  new  one  be  auxiliary  thereto;  then  it  is  matter  of  law 
that  the  new  contract  must  be  in  writing.  Such  as  the  saying,  'Proceed, 
and  if  he  does  not  pay  you,  I  will.'  But  if  the  terms  be  uncertain,  equivocal 
or  ambiguous,  then  it  must  always  be  left  to  the  jury  to  find,  whether  in 
fact  the  former  contract  was  to  continue;  or  whether  the  whole  was  aban- 
doned, and  the  new  contract  and  credit  substituted  in  its  place.  In  this  case 
there  was  nothing  in  the  terms  used,  which  shows,  as  matter  of  law,  whether 
the  Upson  contract  was  to  continue  or  not.  That  was  a  question  of  fact  for 
the  jury  to  find.  If  from  the  language  used,  and  the  other  facts  which  were 
or  may  be  put  into  the  case,  the  jury  find  that  it  was  understood  that  the 
plaintiff  was  to  proceed  upon  his  contract  with  Upson,  and  the  defendant 
was  only  to  pay  upon  the  failure  of  Upson,  then  the  plaintiff  cannot  recover 
of  the  defendant  without  a  writing.  But  if  the  jury  find  it  was  then  under- 
stood, that  the  plaintiff  wlolly  abandoned  his  contract  with  Upson,  and  was 
to  proceed  entirely  on  the  employment  of  the  defendant,  then  the  plaintiff 
should  recover  of  the  defendant  without  any  writing ;  and  the  same  facts 
which  would  enable  him  to  recover  of  the  defendant,  would  prevent  his  recovery 
of  Upson" 


Art.  III.  J         Collateral  Undertakings.  347 

other  legal  proceeding,  by  a  party  thereto,  and  lias  entered 
upon  the  discharge  of  his  duties ;  he  cannot  afterwards, 
without  his  client's  participation,  abandon  the  original 
retainer,  and  continue  to  appear  and  act  as  the  attorney 
for  the  same  party,  upon  a  subsequent  retainer  from 
another  person,  and  tlie  latter' s  promise  to  compensate 
him.  Such  a  promise  would  therefore  be  within  the  stat- 
ute of  frauds,  although  the  attorney' s  services  might  have 
been  subsequently  rendered,  and  expenses  incurred  by 
him,  entirely  upon  the  credit  of  the  new  promisor.  (/) 

(2)  How  far  the  question  is  material  in  this  description  of  cases,  whether  the 
promisor  received  the  benefit  of  the  consideration  for  his  promise. 

§  307.  We  should  not  think  it  necessary  to  add  to  our 
general  remarks  in  another  place,  respecting  the  weight 
to  be  given  to  circumstances  connected  with  the  considera- 
tion, ((7)  anything  specially  applicable  to  this  description  of 
cases,  but  for  the  fact  that  there  is  an  intimation,  in  a  recent 
decision  of  highly  respectable  authority,  that  a  distinction 
may  be  predicated  upon  the  circumstance,  that  the  con- 
sideration enured  wholly  to  the  benefit  of  the  new  prom- 
isor. It  is  quite  important  to  guard  against  any  misap- 
prehension upon  this  point ;  not  orJy  to  avoid  confusion 
in  similar  cases,  but  also  because  the  principles  which 
govern  the  cases  of  this  description,  will  shed  considerable 
light  upon  a  doctrine,  depending  entirely  upon  the  nature 
of  the  consideration,  which  will  be  hereafter  discussed  at 
considerable  leigtli.(7i) 

§  308.  Tlie  decision  referred  to,  (which  is  noticeable  also 
on  account  of  other  questions  involved,)  was  pronounced 
by  the  New  York  Supreme  Court  in  Devlin  v.  Woodgate, 
34  Barbour,  252,  decided  in  the  year  1861.  There  the 
plaintiff  had  been  employed  by  one  Cavenagh,  a  con- 

(/)  Barber  v.  Fox,  1  Starkie,  270 ;  Noel  v.  Hart,  8  Carrington  and 
Payne,  230. 

(g)  Chapter  ii,  article  ii. 
(h)  Chapter  xvii. 


348  Collateral  Undertakings.  [Ch.  ix. 

tractor  with  the  defendant,  to  excavate  a  vault  in  front  of 
the  defendant' s  premises  ;  and  on  the  second  day  after  he 
commenced  his  work,  he  went  to  the  defendant,  and  said 
to  him  tliat  he  would  not  go  on,  unless  the  defendant 
would  promise  to  pay  him  ;  whereupon  the  defendant 
told  him  "to  go  on,  and  finish  the  job,  and  he 
should  be  paid."  After  the  work  was  completed,  the 
plaintiff  signed  and  made  oath  to  an  account  there- 
for against  Cavenagh,  for  the  purpose  of  taking  pro- 
ceedings to  make  the  defendant' s  property  liable,  under 
the  mechanics'  lien  law.  Upon  a  trial  at  the  circuit,  these 
facts  were  submitted  to  a  jury  under  the  judge's  charge ; 
and  it  was  held  on  appeal,  by  a  majority  vote,  that  their 
verdict  for  the  plaintiff  was  conclusive.  The  verdict 
included  compensation  for  the  one  day' s  work,  done  before 
the  defendant' s  promise ;  but  as  it  did  not  appear  what 
were  the  terms  of  the  Contract  with  Cavenagh,  Suther- 
land, J.,  one  of  those  composing  the  majority,  suggested 
that  it  must  be  assumed  that  the  plaintiff  was  not  entitled 
to  any  compensation  from  him,  till  the  work  was  com- 
pleted ;  and  if  so,  Cavenagh  owed  the  plaintiff  no  debt, 
to  which  the  promise  could  be  collateral. 

§  309.  But  the  same  learned  judge  placed  his  decision 
on  the  main  question,  principally  upon  the  ground  that 
the  work  was  for  the  benefit  of  the  defendant,  and  was  to 
be  paid  for  by  the  defendant,  either  to  Cavenagh  or  the 
plaintiff.  Under  the  circumstances,  he  thought  that  after 
the  promise,  the  plaintiff  had  a  right  to  rely  upon  the 
defendant' s  retaining  enough  to  pay  him,  out  of  the  contract 
price  payable  to  Cavenagh ;  and  he  expressed  a  decided 
opinion  that  an  entire  stranger,  having  no  interest  in  the 
work,  would  not  be  liable  under  like  circumstances. 
Welles,  J.,  although  he  assigned  as  the  principal  reason 
for  his  opinion,  that  the  plaintiff  had  violated  his  contract 
with  Cavenagh,  and  that  the  circumstances  upon  which 
the  defendant  relied  had  been  fairly  submitted  to  the  jury ; 
also  mentioned  the  fact  that  the  defendant  was  benefited, 
as  one  of  the  elements  which  influenced  his  opinion  in 


Art.  III.]         Collateral  Undertakings.  349 

support  of  the  verdict,  without  pointing  out  in  what  man- 
ner it  was  significant. 

§  310.  We  must  enter  our  entire  dissent  from  so  much 
of  either  opinion,  as  intimates  that,  as  matter  of  law,  the 
liability  of  tlie  defendant  would  in  any  way  be  affected  by 
the  circumstance,  that  he  was  interested  in  the  completion 
of  the  work.  The  remark  was  apparently  obiter;  for 
although  the  substance  of  the  charge  is  not  stated,  no 
complaint  was  made  of  it;  it  must  therefore  have  been 
in  such  a  form,  that  the  verdict  was  conclusive  to  show, 
that  the  contract  between  the  plaintiff  and  Cavenagh  had 
been  abandoned,  and  that  the  work  was  done  entirely  on 
the  defendant' s  credit.  But  as  soon  as  the  fact  was  ascer- 
tained that  the  original  contract  was  abandoned,  the 
remainder  of  the  case  was  in  all  respects  analogous  to  one 
arising  under  the  third  rule  ;  and  the  chapters  devoted  to 
the  discussion  under  that  rule  are  crowded  with  decisions, 
to  the  effect  that  the  defendant  is  liable  if  the  considera- 
tion was  furnished  exclusively  upon  his  credit,  although  it 
enured  entirely  to  the  benefit  of  another.  And,  as  far  as 
we  have  noticed,  this  case  stands  alone  in  its  class,  in 
attributing  any  particular  legal  significance,  to  the  recep- 
tion of  the  consideration  by  the  defendant ;  although,  as 
we  have  already  remarked,  that  feature  is  almost  invari- 
ably present  in  all  cases  of  this  description.  On  the  con- 
trary there  are  many,  where  that  circumstance  was  disre- 
garded ;  and  some  where  the  decision  was  the  other  way, 
although  in  that  respect  they  are  not  distinguishable  from 
Devlin  V.  Woodgate.{i)  It  is  impossible  therefore  to 
resist  the  conclusion,  that  the  benefit  received  by  the 
defendant,  is  material  only  upon  the  question  of  fact, 
whether  the  original  contract  was  abandoned,  and  the  sub- 
sequent work  done  entirely  upon  his  promise.  (./) 

(i)  See  particularly  Noyes  v.  Humphreys,  ante,  §  302;  Ellison  v.  Jackson 
Water  Company,  12  California,  542;  Newell  v.  Ingraham,  15  Vermont,  422. 

(j)  The  defendant  in  Payne  v.  Baldwin,  14  Barbour,  570,  ante,  §  301, 
was  a  stranger;  but  that  circumstance  is  adverted  to  only  upon  the  question 
of  fact. 


350  COLLATEEAL   UnDEETAKINGS.  [Ch.  IX. 

§  311.  The  weight  to  be  given  to  the  interest  of  the 
promisor,  and  other  questions  discussed  in  this  chapter, 
were  considered  by  the  New  York  Court  of  Appeals,  in 
the  very  recent  case  (March,  1868,)  of  Brown  v.  Weber,  38 
New  York,  187,  reported  in  the  court  below  in  24  How- 
ard's  Practice  Reports,  306.  There  the  defendant  had 
entered  into  two  written  contracts  with  one  Horton,  provid- 
ing that  Horton  would  furnish  the  materials  for,  and  build 
a  saw  mill  for  the  defendant,  on  his  (the  defendant' s)  land, 
within  a  specified  time ;  for  which  the  defendant  would 
pay  Horton  a  certain  sum,  in  a  manner  mentioned  in  the 
contract.  After  Horton  had  framed  and  raised  the  build- 
ing, he  and  the  plaintiff  entered  into  two  contracts,  also 
in  writing,  whereby  the  plaintiff  agreed  with  Horton  to 
complete  the  building ;  for  which  Horton  was  to  pay  him 
a  sum,  smaller  than  the  amount  provided  for  in  the  defend- 
ant's  contracts,  by  passing  over  to  him  the  defendant's 
obligation  for  that  amount.  After  the  commencement  of 
his  work,  the  plaintiff  became  fearful  that  Horton  was  not 
responsible,  and  communicated  his  fears  to  the  defendant ; 
whereupon  the  latter,  to  induce  him  to  go  on  with  his 
work,  promised  him  verbally  "that  if  he  would  go  on 
and  finish  the  mill  according  to  contract,"  he  would  see 
that  he  would  not  lose  any  thing  by  it,  and  that  he  got 
his  pay.  {k)  These  facts  were  found  by  a  referee,  who  also 
found  that  the  defendant  alluded  to  the  contracts  between 
himself  and  Horton ;  that  the  plaintiff  finished  the  mill 
according  to  those  contracts,  with  certain  exceptions  speci- 
fied in  the  report ;  and  that  during  the  progress  of  the 
work,  the  defendant  was  often  present,  and  expressed  his 
approbation  of  the  manner  in  which  it  was  being  done. 
The  referee  held  that  the  defendant' s  promise  was  void  by 
the  statute  of  frauds ;    and  the   Supreme  Court,  by  a 


Qc)  There  is  nothing  else  stated  in  either  report,  to  show  an  abandonment 
of  the  'contracts  between  Horton  and  the  plaintiff;  and  the  report  in  24th 
Howard  further  states,  that  the  referee  found  that  there  was  affirmative 
evidence,  that  the  plaintiflf  regarded  his  contracts  with  Horton  as  being  in 
full  force. 


Art.  III.]  COLLATEEAL   UNDERTAKINGS.  351 

majority  vote,  affirmed  a  judgment  for  the  defendant, 
founded  upon  liis  report.  From  this  decision  the  plaintiff 
appealed  to  the  Court  of  Appeals,  where  the  judgment 
of  the  Supreme  Court  was  aflBirmed. 

§  312.  Grover,  J.,  who  delivered  the  opinion  in  the 
Court  of  Appeals,  first  remarked,  that  as  the  promise  of 
the  defendant  was  conditional  upon  the  fulfilment  of  Hor- 
ton'  s  contracts,  and  as  those  contracts  had  not  been  fulfilled, 
the  plaintiff  could  not  recover,  leaving  out  of  view  the 
question  arising  under  the  statute  of  frauds  ;  but  as  the 
referee  and  the  court  below  did  not  proceed  upon  that 
ground,  the  case  would  be  examined  with  reference  to  the 
statute.  He  then  said,  that  the  application  of  the  statute 
of  frauds  is  not  necessarily  affected  by  the  fact,  that  the 
consideration  was  new;  not  arising  out  of  the  original 
obligation  ;  and  received  by  the  promisor.  In  most  cases, 
he  said,  these  facts  will  show  whether  the  party  contracted 
an  independent  obligation  in  his  own  behalf,  or  whether 
his  position  was  that  of  a  surety ;  but  not  always,  a 
remark  which  the  learned  judge  illustrated  by  two  sup- 
posed cases.  Therefore,  he  said,  "the  receipt  or  non- 
receipt  of  the  consideration  by  the  party  promising,  does 
not  determine,  in  every  case,  whether  it  is  within  the  stat- 
ute or  not ;  but  that  the  inquiry  still  remains,  whether  he 
entered  into  an  independent  obligation  of  his  own,  or 
whether  his  responsibility  was  contingent  upon  the  act  of 
another."  In  this  case,  therefore,  the  question  is  not 
determined  by  the  fact,  that  the  mill  was  built  upon  the 
defendant's  land,  and  became  his  property,  so  that  he 
received  the  consideration.  The  referee  has  determined, 
that  the  promise  really  was,  that  the  defendant  would 
become  surety  that  Horton  should  pay  the  plaintiff  for 
his  work;  and  this  determination  accords  with  all  the 
facts  of  the  case.  "It  is  true,"  the  learned  judge  pro- 
ceeded, "that  it  was  competent  for  the  defendant,  although 
he  had  made  the  contract  with  Horton,"  ....  "to  make  an 
independent  contract  with  the  plaintiff  for  doing  the  same 
job,  and  to  pay  him  therefor ;  and  such  contract  would 


352  COLLATEEAL   UNDERTAKINGS.  [Ch.  IX. 

not  come  within  the  statute;  but  the  difficulty  with  the 
plaintiflF's  case  is,  that  the  referee  has  found  no  such  con- 
tract; nor  would  the  evidence  warrant  such  a  finding.  "(Z) 

§  313.  The  fact  that  the  promisor  is  to  derive  a  benefit 
from  the  completion  of  the  original  contract,  may,  how- 
ever, become  important  in  connection  with  a  question 
hereafter  to  be  considered,  namely,  whether  a  promise  to 
pay  a  pre-existing  debt  of  another  is  within  the  statute, 
when  the  leading  object  of  the  promisor  is  to  subserve 
some  interest  of  his  own.  Some  of  the  cases  cited  in  the 
course  of  that  discussion,  are  quite  relevant  to  the  princi- 
ples now  under  examination ;  and  the  reader,  who  wishes 
to  pursue  the  subject  further,  is  referred  to  them  in  their 
proper  places  in  that  connection,  (m) 

(3)  Cases  where  the  new  promise  was  in  terms  an  assumption  of  the  liability 
of  the  original  contractor. 

§  314.  This  brings  us  to  the  last  question  to  be  con- 
sidered here,  namely,  the  effect  of  a  promise,  whereby  the 
promisor  in  terms  adopts  the  liability  of  the  other  party 
to  the  original  contract.  It  is  obvious  that  the  fact  that 
the  parties  adopted  the  terms  of  the  original  contract,  will 

(T)  The  court  did  not,  in  this  case,  refer  directly  to  the  effect  of  an  abandon- 
ment of  the  original  contracts;  for  it  was  conceded  that  the  plaintiff's  con- 
tracts with  Horton  were  still  subsisting;  the  argument  of  the  plaintiff's  coun- 
sel having  been,  that  as  the  referee  had  found  that  the  defendant's  promise, 
related  to  the  contracts  between  him  and  Horton,  it  could  not  be  deemed 
collateral  to  the  contracts  between  the  plaintiff  and  Horton ;  to  which  the 
learned  judge  made  answer,  that  the  plaintiff's  work  was  done  upon  the 
latter  contracts;  and  the  price  to  be  paid  by  the  defendant  to  the  plaintiff, 
could  not  be  determined  by  reference  to  the  defendant's  contracts  with 
Horton.  To  which  we  may  add,  that  it  was  a  necessary  consequence,  from 
the  finding  that  the  plaintiff's  contracts  with  Horton  were  not  abandoned, 
that  the  defendant's  promise  was  collateral  to  those  contracts;  for  it  was 
impossible  to  suppose  that  the  plaintiff  was  doing  his  work  upon  two  inde- 
pendent sets  of  contracts ;  under  both  of  which  he  would  be  entitled  to  com- 
pensation. 

(m)  Clay  v.  Walton,  9  California,  328;  Kutzmeyer  v.  Ennis,  3  Butcher 
(New  Jersey),  371;  Emerson  v.  Slater,  22  Howard  (U.  S.),  28,  cited  in 
chapter  xvii. 


Art.  III.]         Collateral  Undertakings.  353 

not  necessarily  bring  the  promise  Avithin  the  statute,  if  the 
other  circumstances  sliow  that  it  has  been  abandoned. 
For  then  it  is  evidently  referred  to,  merely  as  a  method  by 
which  the  terms  of  the  new  engagement  are  to  be  ascer- 
tained. Of  course  the  question  whether  such  was  in  fact 
the  intention  of  the  parties,  will  depend  upon  the  peculiar 
circumstances  of  each  case,  it  being  impossible  to  lay  down 
any  general  rule  on  the  subject. 

§  315.  An  instance  of  a  contract  of  this  kind,  where  the 
court  held,  but  without  assigning  any  reasons  for  its  con- 
clusion, that  the  statute  did  not  apply  to  a  promise  to  pay 
for  work  thereafter  to  be  done,  was  presented  in  Rand  v. 
Mather^  65  Massachusetts  (11  Gushing),  1,  decided  in  1853. 
There  the  defendant,  being  the  owner  of  certain  lands, 
made  a  contract  with  one  Whiston,  providing,  among 
other  things,  that  Whiston. should  erect  houses  thereon; 
and  Whiston  made  a  contract  with  the  plaintiffs,  provid- 
ing that  the  latter  should  do  the  necessary  painting  upon 
the  houses,  for  which  Whiston  would  pay  them  a  specified 
Drice  per  yard,  as  the  work  progressed.  After  the  plaint- 
iffs had  done  part  of  their  work,  for  which  they  were 
entitled  to  receive  $45,  Whiston  paid  them  $15,  and 
omitted  to  pay  them  the  remainder ;  whereupon  they 
declined  to  proceed  further,  and  discontinued  work  for  six 
weeks.  The  defendant,  in  order  to  induce  them  to  pro- 
ceed with  it,  then  made  to  them  one  or  more  promises, 
respecting  the  language  of  which  the  witnesses  differed 
somewhat ;  but  all  the  different  versions  amounted  substan- 
tially to  promises  to  pay  them,  or  to  see  them  paid,  what 
they  were  to  receive  under  their  contract  with  Whiston. 
The  plaintiffs  thereupon  completed  the  work ;  and  after- 
wards they  made  out  and  presented  to  Whiston  a  bill 
therefor;  but  the  evidence  left  it  uncertain,  whether  the 
bill  had  not  previously  been  presented  to  the  defendant. 
And  the  judge  at  the  trial  having  instructed  the  jury  to 
find  a  verdict  for  the  defendants,  upon  their  objection  that 
the  promise  was  within  the  statute,  an  exception  to  the 
ruling  was  sustained,  and  a  new  trial  granted.  Metcalf,  J.. 
45 


354  COLLATEKAL   UNDERTAKINGS.  [Ch.  IX. 

delivering  the  opinion  of  the  court,  said  that  the  only 
ground  upon  which  the  instruction  could  have  proceeded, 
was  that  an  agreement  which  is  void  in  part  by  the  statute 
of  frauds,  is  void  in  toto.  And,  referring  to  a  previous 
decision  of  the  same  court  to  that  effect,  {n)  he  discussed 
the  question  at  length,  overruling  the  previous  decision, 
and  holding  that  the  ruling  at  the  trial  was  erroneous, 
because  the  sound  part  could  be  separated  from  the 
unsound. 

§  316.  But  the  principles  upon  which  the  question 
depends  were  elaborately  discussed  and  illustrated  in 
King  v.  Despard,  5  Wendell,  277,  decided  in  1830,  by  the 
New  York  Supreme  Court.  There  the  plaintiffs  had  con- 
tracted with  one  Tilman  to  find  the  materials  and  erect  a 
tan-house  for  Tilman,  at  a  stipulated  price,  payable  when 
the  building  should  be  finished;  and  pursuant  to  the 
contract  they  "got  out  the  timber  and  framed  it;  but 
before  the  building  was  raised,  or  the  sills  laid,  Tilman 
absconded  and  they  stopt  the  work."  Before  absconding, 
Tilman  transferred  the  contract  to  the  defendant,  guaran- 
tied its  performance  by  the  plaintiffs,  and  promised  to 
indemnify  the  defendant  against  the  plaintiffs'  claims  for 
erecting  the  building.  The  plaintiffs,  after  Tilman' s 
departure,  said  to  the  defendant  that  they  had  determined 
not  to  go  on  with  the  work;  and  to  abide  the  conse- 
quences of  not  performing  their  contract.  The  defend- 
ant told  them  to  go  on  and  finish  the  building,  "and  he 
would  pay  them  or  they  should  have  their  pay ;"  where- 
upon the  plaintiffs  completed  the  building.  The  defend- 
ant was  present  and  gave  directions,  while  the  work  was 
in  progress ;  and  at  his  request,  the  building  was  erected 
upon  a  different  part  of  the  land  from  that  marked  out  by 
Tilman,  and  some  alterations  were  made  in  the  plan.  Both 
parties  however  insisted  upon  their  rights  under  the  con- 
tract with  Tilman ;  and  the  alterations  were  charged  for 
separately  as  extra  work ;  and  the  plaintiffs  had  recovered 

(n)  Loomis  v.  Newhall,  cited  ante,  §  174,  and  note. 


Art.  III.]         Collateral  Undertakings.  355 

a  judgment  against  the  defendant  for  the  extra  work. 
The  defendant  from  time  to  time  made  payments  upon 
account  of  the  work ;  for  which  the  plaintiffs,  at  the  request 
of  the  defendant,  drew  orders  in  the  defendant's  favor 
upon  Tilman,  the  defendant  saying  that  he  wanted  them 
as  vouchers  in  his  settlement  with  Tilman ;  and  in  fact 
they  were  applied  upon  a  note,  which  Tilman  held  against 
the  defendant.  The  plaintiffs  sued  for  the  balance  due 
to  them,  and  on  the  trial  the  judge  ruled  that  the  defend- 
ant's promise  was  within  the  statute.  The  defendant 
had  a  verdict  accordingly,  which  the  plaintiffs  moved  to 
set  aside. 

§  317.  The  court  granted  the  motion,  Savage,  C.  J., 
remarking :  "The  defendant  substantially  undertook  that 
the  plaintiffs  should  have  their  pay  according  to  their 
contract  with  Tilman.  The  consideration  for  this  promise 
is  the  building  of  the  house.  The  plaintiffs  were  bound 
by  their  contract  to  build  it,  and  Tilman  to  pay  them  ;  but 
when  he  became  unable  to  pay,  they  preferred  risking  the 
consequences  of  a  breach  of  their  contract.  The  defendant 
had  purchased  the  interest  of  Tilman  in  the  work  ;  it  was 
important  to  him  to  have  it  completed  ;  and  the  promise 
was,  not  to  pay  Tilman' s  contract,  but  as  I  understand  it, 
to  pay  for  the  building  according  to  the  terms  of  that  con- 
tract :  it  was  either  that,  or  a  promise  to  pay  as  much  as 
the  building  was  worth.  It  was  understood  by  both  par- 
ties to  be  an  undertaking  to  pay  according  to  the  terms  of 
Tilman' s  contract,  as  an  extra  price  was  charged  and  paid 
for  variations  made  from  that  contract."  "There  is  no 
one  circumstance  in  the  case,"  continued  the  learned 
Chief  Justice,  "when  properly  explained,  which  proves 
an  intention  on  the  part  of  the  plaintiffs  to  look  to  Tilman 
for  their  pay.  They  had  abandoned  their  contract  with 
him ;  and  what  passed  between  them  and  the  defendant 
must  be  considered  as  a  new  contract.  The  plaintiffs  say, 
we  will  not  put  up  the  building  for  Tilman  ;  the  defendant 
says,  I  stand  in  Tilman' s  place;  I  have  purchased  his 
interest  in  tl;e  work,  and  the  building  is  to  be  erected  for 


356  Collateral  Undertakings.  [Cli.  ix. 

my  benefit ;  go  on  and  finish  it  according  to  your  agree- 
ment with  Tilman,  and  I  will  pay  as  he  agreed  to  pay." 
Referring  to  the  drafts  upon  Tilman,  he  added  "that  they 
favored  the  idea  that  the  building  was  erected  upon  the 
responsibility  of  Tilman,  and  in  pursuance  of  the  con- 
tract with  him ;  but  this  was  removed  by  the  plaintiffs' 
explanation." 

§  318.  This  case  was  followed  by  the  present  Supreme 
Court  of  New  York,  under  circumstances  involving  con- 
siderable nicety  in  the  application  of  the  principle,  in 
Quintard  v.  De  Wolf,  34  Barbour,  97,  decided  A.  D.  1861. 
There  the  plaintiff  had  been  employed  by  one  Gardiner, 
an  inventor,  to  manufacture  a  machine,  which  Gardiner 
had  agreed  to  furnish,  for  a  specified  sum,  to  one  Stead- 
man  ;  and  Gardiner  was  to  pay  the  plaintiff  by  Steadman'  s 
accepted  drafts  upon  D.  S.  &  Co.,  a  firm  in  New  York ; 
the  contract  between  Gardiner  and  Steadman  providing 
for  the  latter  furnishing  such  acceptances,  and  D.  S.  &  Co. 
having  agreed  with  Steadman  that  they  would  accept  his 
drafts  for  the  amount.  From  the  opinions  delivered  in 
the  case,  it  is  apparent  that  by  the  terms  of  the  contract, 
drafts  for  the  price  of  the  machine  were  to  be  given  to  the 
plaintiffs,  when  the  machine  should  be  finished  and  deliv- 
ered ;  and  it  would  seem  that  the  delivery  was  to  be  made 
by  the  plaintiff  to  Steadman,  and  that  the  price  was  fixed 
at  the  same  sum,  which  Steadman  was  to  pay  Gardiner 
therefor. 

§  319.  The  plaintiff  had  nearly  finished  the  machine, 
when  D.  S.  &  Co.  refused,  or  said  they  would  refuse  to 
accept  Steadman' s  drafts ;  whereupon,  according  to  the 
plaintiff's  version  of  the  matter,  he  refused  to  go  on  with 
the  work,  unless  Gardiner  "would  give  a  responsible 
party  in  New  York."  Steadman  then  applied  to  the 
defendant,  to  accept  his  drafts  for  the  price  of  the  machine, 
when  it  should  be  completed,  which  the  defendant  verb- 
ally agreed  with  him  to  do ;  and  Gardiner  having  so 
informed  the  plaintiff,  the  latter  saw  the  defendant,  who 


Art.  III.]         Collateral  Undertakings.  357 

told  the  plaintiff  to  go  on  and  complete  the  machine  "and 
he  would  pay  him  in  his  notes  of  four  and  six  months,  or 
in  Steadman's  drafts  acceptedby  him,  as  he,  the  plaintiff, 
might  prefer."  When  the  machine  was  completed,  Stead- 
man  refused  to  take  it  or  give  his  drafts  therefor ;  where- 
upon this  action  was  brought.  There  was  conflicting 
testimony  as  to  what  took  place,  after  the  refusal  of  D.  S. 
&  Co.  to  accept  the  drafts  of  Steadman  ;  and  at  the  trial 
the  judge  charged  the  jury,  (inter  alia,)  that  if  after  such 
refusal,  and  the  plaintiff's  refusal  to  go  on  with  the  work, 
the  defendant  promised  to  pay  for  the  machine  if  he  would 
complete  it,  the  defendant  was  liable  for  the  price  ;  and  the 
defendant's  request  to  charge  the  jury  that  the  original 
contract  was  not  terminated,  and  that  Gardiner  continued 
from  first  to  last  to  be  liable  was  refused. 

§  320.  The  jury  found  a  verdict  for  the  plaintiff,  and 
the  judgment  rendered  thereon  was  affirmed  on  appeal. 
The  court  remarked  that  Steadman,  who  was  to  receive 
the  machine,  did  not  appear  personally  in  the  transaction 
at  all;  and  although  it  might  have  been  a  question 
whether  Gardiner  or  D.  S.  &  Co.  were  the  persons  origin- 
ally and  directly  responsible,  that  was  not  material,  if  the 
original  contractor,  whoever  he  was,  was  discharged  and 
the  contract  terminated,  which  was  properly  left  to  the 
jury;  and  that  the  defendant's  request  was  correctly 
refused,  because  it  asked  a  positive  instruction  upon  a 
disputed  question  of  fact ;  the  request  should  have  been, 
that  if  Gardiner  was  from  first  to  last  liable  to  the  plaintiff, 
the  defendant  was  not  liable.  The  material  fact  in  the 
case  was  that  the  first  contract  was  rescinded  and  termi- 
nated, and  therefore  the  agreement  upon  which  the  action 
was  brought  was  original,  (o) 

(o)  The  facts  of  this  case  have  been  partly  extracted  from  the  opinions ;  in 
one  of  which,  given  on  a  previous  appeal,  it  is  said  that  D.  S.  &  Go's,  agree- 
ment was  with  the  plaintiff,  and  that  it  was  not  within  the  statute,  they 
alone  being  liable  for  the  price. 


CHAPTER   TENTH. 

THE  SAME  SUBJECT  CONTIISrUED  —  CASES  WHEEE  THE  EXTIN- 
GUISHMENT OF  THE  THIRD  PEESON'S  LIABILITY  WAS 
EFFECTED  BY  AN  AGEEEMENT,  TO  WHICH  HE,  THE 
PEOMISOE,    AND   THE  PEOMISEE  WEEE  PAETIES. 


ARTICLE    I. 

Tlie  doctrine  of  novation! 

§  321.  The  process  by  wMcli  one  person  becomes  sub- 
stituted as  another's  debtor,  in  place  of  a  third,  who  is 
discharged,  is  called  a  novation ;  a  term  which  is  borrowed 
from  the  civil  law,  together  with  the  rules  by  which  the 
doctrine  known  by  that  name  is  governed.  The  introduc- 
tion of  the  doctrine  of  novation  into  the  common  law  has 
been  gradual,  and  our  courts  have  not  yet  fully  adopted  all 
its  incidents,  as  they  prevail  in  the  system  of  jurisprudence 
from  which  it  was  taken.  An  instance  of  this  has  already 
been  given,  (a)  although  there  the  same  result  is  practically 
accomplished,  in  a  way  more  consistent  with  the  princi- 
ples of  the  common  law.  In  another  important  aspect  of 
the  doctrine,  which  is  yet  to  be  examined,  there  is  great 
inconsistency,  not  to  say  conflict  in  the  cases.  We  shall 
have  occasion,  in  investigating  the  different  phases  of  the 
application  of  the  statute  of  frauds  to  promises  to  answer 
for  the  debt,  etc.,  of  another,  to  examine  somewhat  fully, 
how  far  the  doctrine  of  novation  has  become  engrafted 
upon  the  common  law ;  and  we  therefore  append  here  its 
definition,  together  with  a  statement  of  its  elementary 
principles,  and  the  general  rules  of  its  application,  as  we 
find  them  laid  down  by  one  of  the  most  eminent  of  the 
continental  jurists. 

(fi)  See  section  296. 


Art.  I.]  COLLATEEAL   UNDERTAKINGS.  359 

§  322.  "A  novation  is  a  substitution  of  a  new  debt  for 
an  old.  The  old  debt  is  extinguished  by  the  new  one 
contracted  in  its  stead,  for  which  reason  a  novation  is 
included  amongst  the  different  modes,  in  which  obliga- 
tions are  extinguished.  A  novation  may  be  made  in 
three  different  ways,  which  form  three  different  kinds  of 
novations.  The  first  takes  place  without  the  intervention 
of  any  new  person,  where  a  debtor  contracts  a  new  engage- 
ment with  his  creditor,  in  consideration  of  being  liberated 
from  the  former.  This  kind  has  no  appropriate  name, 
and  is  called  a  novation  generally.  The  second  is  that 
which  takes  place  by  the  intervention  of  a  new  debtor, 
where  another  person  becomes  a  debtor  in  my  stead,  and 
is  accepted  by  the  creditor,  who  thereupon  discharges  me 
from  it.  The  person  thus  rendering  himself  debtor  for 
another,  who  is  in  consequence  discharged,  is  called 
expromissor ;  and  this  kind  of  novation  is  called  expro- 
missio.  The  expromissor  differs  entirely  from  a  surety, 
who  is  sometimes  called  in  law,  adpromissor.  For  a 
person  by  becoming  a  surety  does  not  discharge,  but 
accede  to,  the  obligation  of  his  principal,  and  becomes 
jointly  indebted  with  him.  The  third  kind  of  novation 
takes  place  by  the  intervention  of  a  new  creditor,  where  a 
debtor,  for  the  purpose  of  being  discharged  from  his 
original  creditor,  by  the  order  of  that  creditor,  contracts 
some  obligation  in  favor  of  a  new  creditor.  "(&) 

§  323.  As  our  proposed  examination  of  the  extent  to 
which  the  doctrine  of  novation  now  prevails  at  common 
law,  is  merely  subordinate  to  its  effect  upon  the  applica- 
tion of  the  statute  of  frauds  to  verbal  promises,  the  first 
species  of  novation,  which  does  not  involve  that  question, 
will  receive  no  special  attention,  and  the  examination  of 
the  third  will  be  deferred  to  a  subsequent  chapter -,(0) 


{h)  Pothier  on  Obligations,  Part  III,  chapter  2,  article  1;  Evans's  Transla- 
tion, Vol.  I,  pp.  546  to  549. 

(c)  Chapter  fourteenth,  article  fourth. 


360  COLLATEKAL  UnDEETAKINGS.  [Ch.  X. 

because,  although  its  validity  at  common  law  rests  upon 
the  same  grounds  as  that  of  the  others,  its  validity  under 
the  statute  depends  upon  a  different  principle.  We  will 
therefore  proceed  to  the  examination  of  the  application  of 
the  statute,  to  cases  where  there  has  been  a  novation  by 
the  discharge  of  the  person  originally  liable,  and  the 
acceptance  of  a  new  promisor  in  his  stead,  accomplished 
by  mutual  agreement  between  the  three  persons  interested. 

ARTICLE  11. 

Where,  ty  consent  of  all  the  parties,  the  third  person's  antecedent  liability  to  the  promisee 
was  discharged,' in  consideration  of  the  promisor's  engagement  to  pay  to  the  promisee,  a  debt 
antecedently  due  by  him  to  the  third  person. 

§  324.  This  species  of  novation  was  the  first  to  be  recog- 
nized by  the  common  law,  and  it  is  sometimes  said  to 
raise  an  exception  to  the  rule  that  a  chose  in  action  can- 
not be  assigned ;  but,  whether  this  expression  is  strictly 
accurate  or  not,  it  is  well  settled  that  an  action  in  favor  of 
a  transferee  of  a  debt  against  the  debtor,  must  be  founded 
upon  a  promise  of  the  defendant  to  the  plaintiff  to  pay  the 
debt  to  him.  In  the  United  States  it  seems  to  be  held,  that 
the  debtor' s  liability  is  sufficient  as  a  consideration  for 
the  promise  ;  but  in  England  it  is  said,  no  doubt  correctly 
upon  the  strict  rules  of  the  common  law,  that  like  aU  other 
contracts,  such  a  promise  is  binding  upon  the  promisor,  only 
when  it  was  founded  upon  a  distinct  consideration,  moving 
between  the  parties  to  the  promise;  at  least  to  the  extent  that 
it  must  be  something  done,  or  permitted  to  be  done  by  the 
promisee,  at  the  express  or  implied  request  of  the  prom- 
isor. Where  the  consideration  of  the  transfer  was  a  debt 
due  to  the  transferee  by  the  transferor,  forbearance  upon, 
or  the  discharge  of  which  formed  the  consideration  of  the 
promise,  by  the  person  who  owes  the  debt  transferred, 
the  question  is  at  at  once  presented,  whether  the  promise 
was  to  answer  for  the  debt  of  another,  within  the  statute 
of  frauds  ;  and  this  question  has  given  rise  to  many  doubts 
and  considerable  nicety  of  distinction.  We  shall  examine 
hereafter  that  aspect  of  it  which  is  presented,  where  the 
promise  was  founded  upon  forbearance,  or  any  other  con- 


Art.  II.]  COLLATEEAL  UNDERTAKINGS.  361 

sideration,  than  the  discharge  of  the  debt  due  from  thp 
transferor  to  the  transferee.  Where  it  was  founded  upon 
such  a  discharge,  and  the  promise  was  verbal,  its  validity, 
under  the  statute  of  frauds,  is  determined  by  the  principle 
embodied  in  the  fourth  rule. 

§  325.  The  common  law  writers  generally  confine  the 
generic  term  novation  to  the  latter  species  of  contract ;  but 
it  is  generally  known  in  the  civil  law  as  a  delegation,  or 
double  novation,  concerning  which  the  eminent  author 
already  quoted  says :  "  Delegation  is  a  kind  of  novation, 
by  which  the  original  debtor,  in  order  to  be  liberated  from 
his  creditor,  gives  him  a  third  person,  who  becomes 
obliged  in  his  stead  to  the  creditor,  or  to  the  person 
appointed  by  him."  "A  delegation  includes  a  novation, 
by  the  extinction  of  the  debt  from  the  person  delegating, 
and  the  obligation  contracted  in  his  stead  by  the  person 
delegated.  Commonly,  indeed,  there  is  a  double  novation ; 
for  the  party  delegated  is  commonly  a  debtor  of  the  per- 
son delegating ;  and  in  order  to  be  liberated  from  the 
obligation  to  him,  contracts  a  new  one  with  his  creditor. 
In  this  case  there  is  a  novation  both  of  the  obligation  of 
the  person  delegating,  by  his  giving  his  creditor  a  new 
debtor,  and  of  the  person  delegated,  by  the  new  obligation 
which  he  contracts. "(a) 

§  326.  The  principle  of  this  kind  of  novation,  although 
no  name  was  given  to  it,  is  to  be  found  in  some  very  early 
cases,  but  its  first  promulgation  in  the  common  law,  is 
generally  attributed  to  Buller,  J.,  in  Tatlock  v.  Harris, 
3  Term  Reports,  174,  A.  D.  1789  ;  a  case  having  no  special 
relevancy  to  this  question,  but  where  that  eminent  judge, 
in  answer  to  one  of  the  counsel,  during  the  argument, 
made  the  following  observation:  "Suppose  A  owes  B 
lOOZ.,  and  B  owes  C  100^.  ;  and  the  three  meet,  and  it  is 
agreed  between  them  that  A  shall  pay  C  the  100^. ;  B's 

(tt)  Pothier  on  Obligations,  Part  III,  chapter  3,  article  6,  sections  1  and  2. 
Evans's  Translation,  vol.  I,  pp.  564  and  565. 
46 


362  COLLATEEAL   UNDERTAKINGS.  [Ch.  X. 

debt  is  extinguished,  and  C  may  recover  that  sum  against 
A."  There  is  no  further  allusion  in  the  case  to  this  sub- 
ject ;  but  this  incidental  remark  of  Mr.  Justice  Buller  has 
been  construed  in  subsequent  cases,  as  laying  down  three 
rules  or  propositions,  namely :  1.  That  wherever  the 
transaction  between  the  parties  is  such,  that  the  two 
intermediate  debts  are  extinguished,  the  promise  is  good 
at  common  law.  2.  That  the  promise  is  not  good,  unless 
both  the  intermediate  debts  are  extinguished.  3.  That  in 
the  particular  case  put,  both  the  intermediate  debts  were 
extinguished  as  matter  of  law,  although  there  were  no 
express  words  of  discharge  of  either.  The  question 
whether  the  second  of  these  propositions  is  law,  will  be 
examined  at  length  in  subsequent  chapters.  (6)  The  first  is 
the  only  one  with  which  we  have  any  direct  concern  in  this 
connection.  We  will  illustrate  it  by  a  few  cases,  showing 
the  circumstances  under  which  the  two  intermediate  debts 
are  regarded  as  discharged,  or  vice  versa  ;  and  as  it  is  fre- 
quently dependent  upon  the  third,  some  of  the  cases 
necessarily  involve  that  proposition  also.  It  makes  no 
substantial  difference,  whether  the  question,  respecting  the 
validity  of  the  promise,  arises  at  common  law  or  under  the 
statute.  Indeed  the  cases  treat  it,  as  arising  in  either 
aspect  indiscriminately. 

§  327.  In  Browning  v.  Stallard,  5  Taunton,  450,  decided 
A.  D.  1814,  in  the  Common  Pleas,  the  plaintiffs  sued  as 
assignees  in  bankruptcy  of  one  Morgan,  to  recover  the 
value  of  a  cask  of  gin ;  and  it  appeared  that  the  cask  was 
ordered  from  Morgan  by,  and  delivered  to  one  Phillips,  a 
publican,  who  afterwards  "gave  it  over"  to  the  defend- 
ant, another  publican;  when  the  rider  of  Morgan  came 
for  his  money,  Phillips  said  to  him  that  he  had  sent  the 
cask  to  the  defendant,  who  would  pay  him  when  he  came 
around  again ;  and  the  defendant  then  coming  in,  this  was 
repeated,  and  he  assented  to  it.  At  the  trial,  it  was 
objected  that  the  promise  was  within  the  statute,  and  it 

(fi)  Chapter  twelfth,  and  chapter  fourteenth,  article  fourth. 


Art.  II.]  Collateral  Undertakings.  368 

was  contended  that  as  the  gin  was  originally  sold  to 
Phillips,  the  mere  taking  possession  of  it  by  the  defend- 
ant, would  not  give  the  plaintiffs  a  cause  of  action  upon 
any  other  ground;  but  Chambre,  J.,  before  whom  the 
cause  was  tried,  thought  this  was  a  transfer  of  the  sale  by 
consent  of  all  parties,  and  not  an  agreement  to  pay  the 
debt  of  another,  and  the  plaintiffs  had  a  verdict.  A  motion 
was  made  to  set  aside  the  verdict  and  for  a  new  trial,  but 
the  court  refused  a  rule,  holding  that  the  ruling  below 
that  it  was  a  transfer  was  right,  and  adding:  "An  action 
could,  after  that  consent,  no  longer  have  been  maintained 
against  Phillips  for  the  goods.  It  was  a  new  sale  of  them 
to  the  defendant." 

§  328.  The  case  of  Cuxon  v.  Chadley,  3  Barnewall  and 
Cresswell,  591, (c)  A.  D.  1824,  in  the  King's  Bench,  pre- 
sented directly,  only  the  question  whether  the  original 
debtor  to  the  plaintiff  was  in  fact  discharged,  the  solution 
of  which,  however,  depended  upon  whether  the  new  prom- 
isor in  fact  assumed  any  legal  liability.  This  was  an 
action  in  favor  of  the  assignees  of  one  Sweet,  a  bankrupt, 
against  James  Chadley,  to  recover  a  sum  due  for  goods 
sold  to  him  by  the  bankrupt ;  and  the  defence  was  that 
before  the  bankruptcy,  Robert  Chadley,  the  defendant's 
brother,  who  then  had  an  account  current  growing  out  of 
various  transactions  with  Sweet,  and  at  the  same  time 
owed  the  defendant  a  larger  sum,  than  the  bill  of  goods 
for  which  this  action  was  brought,  had  requested  Sweet 
to  charge  this  amount  of  James's  bill  to  his  (Robert's) 
account  current,  to  which  Sweet  had  assented ;  and  when 
the  account  was  adjusted  between  Robert  and  Sweet  at 
the  end  of  the  year.  Sweet,  by  Robert's  direction,  entered 
to  Robert's  debit,  that  charge,  which  nearly  balanced  the 
account  between  them.  Soon  after  making  the  arrange- 
ment with  Sweet,  Robert  communicated  it  to  his  brother 
James,  the  defendant ;  but  the  report  does  not  state  that 
any  thing  ever  passed  between  Sweet  and  the  defendant. 

(c)  S  C,  5  Dowling  and  Ryland,  417  ;  and  1  Carrington  and  Payne,  174. 


364  COLLATEEAL  UnDEETAKINGS.  [Cll.  X. 

The  plaintiffs  had  a  verdict,  and  a  rule  nisi  to  enter  a 
nonsuit  was  discharged  ;  on  the  ground  that  the  entry  was 
proof  merely  of  an  assent  to  debiting  Robert  with  the 
goods,  and  not  that  the  bankrupt  consented  to  take 
Robert  as  his  debtor,  and  discharge  James.  Abbott,  C. 
J.,  remarked,  that  at  most  there  was  an  accord  between 
Robert  and  the  bankrupt,  but  no  satisfaction ;  and  he 
added,  "We  cannot  say,  therefore,  that  either  Robert 
could  have  been  made  to  pay  this  money  to  Sweet,  if  he 
had  called  for  it,  or  that  James  is  discharged  from  his 
original  obligation  to  pay  the  amount  of  goods  sold  to 
him."(^) 

§  329.  So  in  Wharton  v.  Walker^  4  Barnewall  and  Cress- 
well,  163,  and  6  Dowling  and  Ryland,  288,  decided  in  the 
same  court,  A.  D.  1825.  There  one  Lythgoe  was  indebted 
to  the  plaintiff,  and  gave  him  an  order  for  the  amount  of 
the  debt  upon  the  defendant,  who  was  his  tenant,  payable 
out  of  the  rent  that  should  next  become  due ;  and  the 
plaintiff  sent  the  order  to  the  defendant,  without  any  fur- 
ther communication  between  them.  When  the  next  rent 
became  due,  the  defendant  produced  the  order  to  Lythgoe, 
and  promised  him  to  pay  the  amount  to  the  plaintiff; 
whereupon  Lythgoe  allowed  him  to  deduct  that  amount, 
and  on  his  paying  the  difference,  gave  him  a  receipt  for 
the  whole  sum.  The  plaintiff  then  brought  this  action, 
declaring  for  money  had  and  received,  and  upon  an  account 
stated.     On  the  trial  he  was  nonsuited,  on  the  ground 

(d)  The  trial  of  this  cause  is  reported  in  1  Carrington  and  Payne,  174, 
from  which  it  would  appear  that  the  ruHng  turned  upon  the  ground,  that 
Robert's  agreement  to  pay  James's  debt  was  within  the  statute  of  frauds. 
The  notes  of  the  argument  are  given  at  page  485  of  the  same  volume;  where 
it  is  said,  that  on  counsel  for  the  plaintiffs  insisting  that  Robert  could  not  be 
bound  without  a  writing,  Bayley,  J.,  answered  :  "  There  you  are  quite  wrong, 
Mr.  Marryatt;  for  there  are  many  cases  which  decide  that  a  man,  by  word 
only,  may  take  a  debt  upon  himself,  discharging  the  principal  debtor.  In 
this  case  Robert  owes  James  money ;  and  by  this  arrangement,  Robert  is  to 
pay  Sweet  what  he  would  otherwise  pay  to  his  brother."  To  which  Marryatt 
answered,  that  there  was  no  evidence  that  Sweet  knew  that  one  brother 
owed  the  other  any  money. 


Art.  II.  J  COLLATEEAL   UNDERTAE:i:N-OrS.  365 

that  the  promise  was  within  the  statute  of  frauds,  and  a 
rule  nisi  to  enter  a  verdict  in  his  favor  was  discharged. 
Although  the  court  thought  that  the  declaration  should 
have  been  special;  all  the  judges,  delivering  opinions 
seriatim,  also  agreed  that  the  action  could  not  be  main- 
tained ;  because,  as  the  three  parties  did  not  concur  in  the 
arrangement,  the  debt  due  from  Lythgoe  to  the  plaintiff 
had  not  been  discharged,  and  the  plaintiff  might  collect  it 
from  him ;  so  the  case  did  not  come  within  Buller's  rule.(e) 

§  330.  There  are  a  few  cases  in  the  United  States,  where 
the  correctness  of  the  first  or  of  the  third  proposition, 
derived  from  the  rule  in  Tatlock  v.  Harris^  has  been 
denied,  either  expressly  or  by  implication ;(/)  but  they 
run  decidedly  counter  to  the  general  current  of  the  Ameri- 
can decisions.  Indeed  this  seems  to  favor  the  much 
broader  rule,  that  a  promise  by  a  debtor  to  pay  his  debt 
to  a  transferee  thereof,  is  valid,  at  common  law,  without 
any  new  consideration ;  and  under  the  statute  of  frauds, 
upon  the  principle  embodied  in  the  sixth  rule.  We  will 
cite  some  specimen  cases  where  the  first  and  third  propo- 
sitions were  recognized  and  their  application  illustrated ; 
and  where  also  the  validity  of  the  transaction,  under  the 
statute  of  frauds,  was  either  expressly  affirmed,  or  admitted 
by  implication. 

§  331.  In  Hay  don  v.  Christopher,  1  J.  J.  Marshall  (Ken- 
tucky), 382,  A.  D.  1829,  the  plaintiff  was  a  creditor  of  one 

(e)  This  case,  and  several  others  not  cited  here,  where  it  was  ruled,  upon 
grounds  which  appear  to  be  unsatisfactory,  that  there  was  a  discharge  df  the 
intermediate  debts,  are  commented  upon  in  the  note  at  the  conclusion  of 
chapter  xiv. 

(/)  Smith  V.  Coleman,  1  Bibb  (Kentucky),  488,  A.  D.  1809;  Gunnels  v. 
Stewart,  3  Brevard  (South  Carolina),  52,  A.  D.  1812;  Jones  v.  Ballard,  2  Mill 
(South  Carolina),  113,  A.  D.  1818;  Smith  v.  Stevens,  3  Indiana,  332,  A.  D. 
1852.  In  the  last  mentioned  case  it  is  said  that  a  transaction,  which  was 
substantially  the  same  as  the  supposed  case  put  in  Tatlock  v.  Harris,  would 
be  void  under  the  statute  of  frauds;  but  the  decision  was  put  upon  another 
ground,  which  calls  for  no  comment  here,  as  it  did  not  arise  under  the 
statute. 


366  COLLATEEAL   UNDERTAKINGS.  [Ch.  X. 

Cock  to  the  amount  of  $25,  and  the  defendant  said  that 
he  owed  Cock  $20 ;  and  thereupon  an  agreement  was 
made  between  the  three,  whereby  the  defendant  agreed  to 
pay  the  plaintiff  $20,  and  the  two  intermediate  debts  were 
discharged.  Afterwards  Cock  fled  from  the  State;  and 
the  defendant  then  said  that  he  did  not  owe  him  as  much 
as  he  had  supposed,  and  refused  to  pay  the  plaintiff.  It 
was  objected  at  the  trial,  that  the  promise  was  within  the 
statute,  and  the  defendant  had  a  verdict  under  the  instruc- 
tions of  the  court.  The  judgment  rendered  thereon  was 
reversed,  and  a  new  trial  ordered ;  the  Court  of  Appeals 
holding  that  the  promise  was  not  witliin  the  statute,  and 
that  after  procuring  Cock's  release  by  the  plaintiff,  the 
defendant  could  not  show  that  he  had  been  mistaken  in 
the  amount  of  his  debt  to  Cock.(^) 

§  332.  An  American  case,  where  a  novation  was  sus- 
tained under  the  rule  of  Tatlock  v.  Harris^  in  an  action 
by  the  substituted  creditor  seeking  to  recover  upon  the 
original  liability,  is  reported  under  the  name  of  Heaton 
V.  Angier,  7  IS'ew  Hampshire,  397,  decided  A.  D.  1835. 
There  the  plaintiff  sued  for  the  price  of  a  wagon  sold  to 
the  defendant,  and  it  appeared  that  immediately  after  the 
sale,  one  Chase  bought  the  wagon  from  the  defendant,  at  a 
slight  advance  upon  the  price  ;  that  Chase  and  the  defend- 
ant went  to  the  plaintiff ;  and  Chase  agreed  to  pay  to  the 
plaintiff  the  purchase  price  of  the  wagon,  to  be  paid  by 
the  defendant;  "and  the  plaintiff  agreed  to  take  Chase  as 
paymaster  for  that  sum,  and  thereupon  Chase  took  the 
wagon  and  went  away."  Upon  a  verdict,  subject  to  the 
opinion  of  the  court,  it  was  held  that  the  action  could  not 
be  maintained ;  as  the  agreement  of  the  plaintiff  to  take 
Chase  as  his  debtor  discharged  the  defendant,  the  debt 
due  from  Chase  to  the  defendant  being  simultaneously 
discharged. 


(g)  The  last  paragraph  is  in  accordance  with  part  of  the  ruHng  in  Beach 
V.  Hungerford,  post  §  336. 


Art.  II.]  Collateral  Undertakings.  367 

§  333.  And  in  Wood  v.  Corcoran,  83  Massachusetts  (1 
Allen),  405,  A.  D.  1861,  a  verbal  agreement  between  the 
plaintiflf,  the  defendant,  and  a  third  person,  who  was  the 
plaintiff's  debtor  and  the  defendant's  creditor,  tliat  the 
defendant  would  pay  the  plaintiff  the  debt  against  the 
third  person,  and  that  the  latter  should  be  discharged, 
was  sustained  as  not  being  within  the  statute.  And  the 
court  said,  that  the  agreement  operated  to  discharge  as 
much  of  the  defendant's  debt  to  the  third  person,  as 
was  equal  to  the  sum  which  he  undertook  to  pay  to  the 
plaintiflf. 

§  334.  In  Grover  v.  Sims,  5  Blackford  (Indiana),  498,  A. 
D.  1841,  it  was  held  that  a  novation  was  good  which  took 
effect  immediately,  although  the  amount  of  the  substituted 
debt  was  not  definitely  known,  and  payment  was  to  be  post- 
poned till  the  amount  should  be  ascertained.  There  the 
defendants  were  indebted  to  one  Treadway,  "having  funds 
or  cash  of  his  in  their  hands,"  and  Treadway  was  indebted 
to  the  plaintiflf  upon  a  promissory  note  made  by  him ; 
the  parties  met,  and  mutually  agreed  that  the  defendants 
should  pay  to  the  plaintiffs  the  amount  they  owed  Tread- 
way, "so  soon  as  the  precise  amount  of  their  indebtedness 
to  Treadway,  could  be  ascertained  by  reference  to  their 
accounts."  Upon  the  trial,  various  objections  were  taken 
to  the  recovery,  among  them  that  the  plaintiflf  had  not 
proved  that  he  had  delivered  up  Treadway' s  note,  or 
otherwise  expressly  released  him,  but  the  judge  charged 
that  this  was  not  necessary,  and  the  plaintiflf  had  a  ver- 
dict, which  was  aflftrmed  upon  appeal.  The  opinion  of 
the  court,  reviewing  the  English  cases,  held  that  the 
debt  from  Treadway  to  the  plaintiflf  was  extinguished,  and 
that  the  action  for  money  had  and  received  lay  against 
■the  defendants. 

§  335.  An  instance  of  double,  or  as  the  civil  lawyers 
would  perhaps  call  it,  quadruple  novation,  or  double 
delegation,  occurred  in  the  case  of  Beach  v.  Hungerford^ 
19  Barbour  (New  York),  258,  A.  D.  1855.     There  the 


368  Collateral  Undertakings.  [Ch.  x. 

defendants,  who  were  contractors  with  a  railroad  com- 
pany for  the  construction  of  a  portion  of  the  company's 
road,  had  made  a  sub-contract  with  one  Deland  for  the 
construction  of  one  section,  reserving  the  right  to  retain 
sufficient  moneys  to  pay  the  laborers  employed  by  Deland, 
if  the  latter  failed  to  pay  them.  Deland  employed  a 
number  of  laborers,  and  after  doing  a  part  of  the  work, 
stopped,  leaving  them,  unpaid.  The  plaintiff  had  fur- 
nished supplies  to  them,  for  which  they  were  indebted  to 
him.  Deland,  the  laborers,  the  plaintiff,  and  the  defend- 
ants thereupon  agreed  that  the  defendants  should  pay 
the  plaintiff' s  bills  against  the  laborers  for  supplies,  (the 
amount  of  which  was  agreed  upon) ;  that  the  laborers 
should  be  discharged  from  liability  to  the  plaintiff ;  that 
the  amount  of  the  plaintiff's  bills  against  each  laborer 
should  be  deducted  from  the  wages  owing  to  him;  and 
that  the  balance  due  to  each  laborer  should  be  paid  to  him 
by  the  defendants.  The  defendants  thereupon  paid  the 
laborers  the  amount  due  to  them  respectively,  deducting 
the  plaintiff's  bills.  It  appeared  further  that  before 
this  arrangement  was  made,  the  laborers  had  taken  pro- 
ceedings under  the  railroad  act,  to  charge  the  company 
with  the  amount  of  their  wages  ;  and  that  the  defendants' 
contract  with  the  company  provided  that  the  company 
might  retain  moneys  sufficient  to  satisfy  any  such  claims.. 
In  an  action  brought  by  the  plaintiff,  to  recover  the  sums 
thus  deducted  by  the  defendants,  it  was  objected  that  the 
defendants'  promise  was  void  by  the  statute  of  frauds ; 
but  the  objection  was  overruled,  and  a  judgment  for  the 
plaintiff,  rendered  upon  a  referee's  report,  was  affirmed 
on  appeal. 

§  336.  It  was  held  that  it  was  of  no  consequence,  whether 
the  laborers  had  any  valid  claim  against  the  company  by 
the  provisions  of  the  act ;  or  whether  the  defendants 
retained  enough  of  the  moneys  due  from  them  to  Deland, 
to  pay  the  plaintiff ;  or  whether  they  were  liable  to  the 
laborers  for  their  wages.  It  was  sufficient  that  they 
undertook  to  settle,  and  did,  in  fact,  settle  with  the  labor- 


Art.  II.]  Collateral  Undertakings.  369 

ers,  acknowledging  their  liability  so  to  do  ;  and  that  for 
that  purpose  they  used  the  plaintiff's  d(-iiiands  against 
them,  as  so  much  money  in  their  hands.  That  in  this  way 
the  plaintiff's  demands  against  the  laborers  were  paid  and 
satisfied,  and  the  defendants  became  liable  to  the  plaintiff 
for  so  much  money  had  and  received  to  his  use.  That 
the  statute  of  frauds  had  nothing  to  do  with  the  case ; 
and  that  the  agreement  was  original,  and  the  considera- 
tion sufficient.  (7i) 

§  337.  Other  cases  illustrating  the  application  of  the 
doctrine  that  the  discharge  of  the  intermediat<'  debts  will 
suffice  to  sustain  the  promise  at  common  law  and  under 
the  statute  of  frauds,  will  be  found  in  the  note.(/)  They 
also  sustain  the  general  principle,  which,  notwithstanding 
some  intimations,  and  even  rulings  to  the  contrary,  is  upon 
the  whole,  clearly  established  by  the  weight  of  authority; 
that  any  words  or  acts,  manifesting  either  expressly  or  by 
necessary  implication,  a  consent  on  the  part  of  the?  three 
persons  concerned,  that  the  intermediate  debts  should  be 
immediately  discharged,  are  sufficient  to  extinguish  them. 
The  question  whether  any  consideration,  except  such  a 

(h)  Pothier  (Part  III,  chapter  2,  article  5),  speaking  of  delegation,  says: 
"Sometimes  there  intervenes  a  fourth  party,  viz. :  the  person  indicated  by 
tlie  creditor,  and  in  whose  favor  the  person  delegated  becomes  obliged  upon 
the  indication  of»the  creditor,  and  by  the  order  of  the  person  delegating." 
But  here  was  something  more,  for  the  fourth  person  was  a  creditor  of  one 
of  the  intermediate  persons,  whose  demand  was  also  extinguished  by  the 
novation.  The  process  was  evidently  double ;  first  the  laborers'  claim  against 
Deland,  and  the  plaintiff's  claim  against  the  laborers  were  extinguished  by 
one  delegation,  and  the  plaintifl'  became  a  creditor  of  Deland ;  then  the 
plaintiff's  claim  against  Deland,  and  Deland's  claim  (pro  tanto)  against  the 
defendants  were  extinguished  by  another,  and  the  plaintiff  became  a  creditor 
of  the  defendants. 

(i)  Ramsdalev.  Horton,  3  Barr  (Pennsylvania),  330,  A.  D.  184G ;  Barrin- 
ger  V.  Warden,  12  California,  311  (1859);  Cnnsociated  Presbyterian  Society, 
etc.,  V.  Staples,  23  Connecticut,  544  (1855);  Stony  v.  Menzies,  4  Chandler 
(Wisconsin),  61(1851);  Millard  v.  Porter,  18  Indiana,  503(1802);  Stanly 
V.  Hendricks,  13  Iredell  (North  Carolina),  8G  (1851) ;  King  v.  Hutchins,  28 
New  Hampshire,  561  (1854);  Cook  v.  Barrett,  15  Wisconsin,  596  (1862). 

47 


370  COLLATEEAL  UNDERTAKINGS.  [Ch.  X. 

double  discharge,  will  sustain  a  promise  by  a  debtor  to 
pay  his  debt  to  a  transferee  thereof,  is  of  course  entirely 
distinct,  at  common  law,  and  under  the  statute. 


ARTICLE  III. 

Where  the  third  person's  antecedent  liahility  to  the  promisee  was  discharged,  in  consideration 
of  its  assumption  hy  the  promisor, 

§  338.  This  class  of  cases,  like  that  which  formed  the 
subject  of  the  third  article  of  the  last  chapter,  comes 
within  the  second  species  of  single  novation  described  by 
Pothier,  and  called  expromissio,(a)  being  that  which  takes 
place  ' '  by  the  intervention  of  a  new  debtor,  where  another 
person  becomes  a  debtor  in  my  stead,  and  is  accepted  by 
the  creditor,  who  thereupon  discharges  me."  It  is  valid, 
at  common  law  and  under  the  statute  of  frauds,  only  when 
it  is  made  by  the  concurrence  of  the  three  parties ;  that  is 
to  say,  the  creditor,  the  old  debtor,  who  is  to  be  discharged, 
and  the  person  who  is  to  assume  his  place.  As  it  consti- 
tutes only  one  half  of  that  species  of  delegation,  to  the 
examination  of  which  the  preceding  article  is  devoted,  one 
of  the  elements  of  the  consideration,  necessary  to  the  valid- 
ity of  a  contract  of  that  kind,  is  unimportant  in  this  species 
of  contract.  Here  the  consideration  for  the  assumption 
of  the  new  liability  by  the  new  debtor,  is  merely  the  dis- 
charge by  the  creditor  of  the  original  debtor ;  and  it  is  of 
no  consequence  what  was  the  consideration,  or  whether 
any  consideration  passed,  between  the  new  debtor  and 
the  person  discharged  ;  whereas,  as  we  have  seen,  it  is  one 
of  the  ingredients  of  a  delegation  by  double  novation,  that 
the  former  shall  be  discharged  by  the  latter  of  a  precedent 
debt  owing  by  him. 

§  339.  In  this  class  of  cases,  as  in  the  other,  any  thing 
which  amounts  to  a  valid  discharge  of  the  original  debtor, 
suffices  to  take  the  promise  out  of  the  operation  of  the 
statute ;  respecting  which,  it  may,  in  general  terms,  be  said 

(a)  See  ante,  §  322. 


/.]'t.  in.]         Collateral  Undertakings.  371 

tliat  any  words  or  acts  passing  between  liim  and  liis  cred- 
itor, indicating  unequivocally  an  intention  on  the  part  of 
tlie  latter,  immediately  and  thenceforth  to  abandon  his 
demand,  and  an  assent  thereto  on  the  part  of  the  former, 
will  suffice. 

(1)  Cases  illustrating  the  general  principle,  and  the  rule  that  the  three  per- 
sons  in  interest  must  concur, 

§  340.  The  question  whether  the  discharge  of  the  prin- 
cipal debtor,  by  a  trii^artite  agreement,  sufficed  to  take  a 
stranger's  promise  out  of  the  statute,  arose  and  was 
affirmatively  decided  in  Bird  v.  Gammon,  3  Bingham's 
New  Cases,  883,  in  the  Court  of  Common  Pleas,  A.  D. 
1837.  (?>)  There  the  plaintiff  had  issued  a  lieri  facias  upon  a 
judgment  in  his  favor  against  one  Lloyd,  Subsequently 
Lloyd  conveyed  to  the  defendant  his  farm  and  farming 
stock;  the  defendant  verbally  undertaking  in  return,  as 
was  expressly  proved  at  the  trial,  and  as  it  also  appeared 
by  the  recitals  of  the  deed^  to  satisfy  Lloyd' s  creditors ; 
and  it  was  a  part  of  the  agreement,  the  plaintiff  being  a 
party  to  it  and  an  attesting  witness  to  the  deed,  that 
Lloyd  should  be  discharged.  The  plaintiff  then  mthdrew 
his  execution,  and  Lloyd  continued  to  manage  the  proj^- 
erty  as  the  defendant' s  bailiff.  About  three  years  after- 
wards, the  defendant,  having  examined  the  plaintiff's 
account,  acknowledged  its  correctness.  At  the  trial  two 
objections  were  made  to  a  recovery,  one  of  which  is  not 
important  in  this  connection ;  the  other  was  that  the 
defendant' s  engagement  was  within  the  statute  of  frauds. 
The  plaintiff  had  a  verdict ;  and  upon  the  argument  of  a 
Tule  nisi,  the  court  held  that  the  promise  was  not  within 
the  statute,  because  Lloyd  could  set  up  the  agreement, 
in  bar  of  a  new  suit,  or  to  stay  proceedings  upon  the 
judgment ;  so  that  the  plaintiff  had  effectually  dis- 
charged him,  and  accepted  the  defendant's  undertaking, 
in  lieu  of  any  remedy  against  him.  The  rule  was  there- 
fore discharged. 

(b)  S.  C,  5  Scott,  213,  and  3  Hodges,  224. 


372  CoLLATEEAL  Undeetakings.  "  [Ch.  X. 

§  341.  On  tlie  other  hand,  it  was  held  by  the  same  court 
in  FrencTi  v.  French^  2  Manning  and  Granger,  644,  (c)  A. 
D.  1841,  that  as  it  did  not  clearly  appear  that  the  origmal 
debt  was  discharged,  the  defendant's  promise  to  pay  it 
was  within  the  statute.  There  the  plaintiff  sued  to 
recover,  among  other  items  of  an  account,  the  amount  of 
321Z.  5s.,  being  a  debt  originally  contracted  by  the  defend- 
ant' s  father ;  and  it  appeared  that  the  defendant,  who  was 
a  naval  officer,  had  given  to  the  plaintiff  a  writing,  (insuffi- 
cient under  the  statute  of  frauds, )  acknowledging  that  he 
had  received  from  the  plaintiff  3211.  5s.;  and  desiring  that 
in  case  of  his  death,  during  his  absence  from  England,  or 
at  any  time  before  the  debt  was  liquidated,  the  plaintiff 
should  be  paid  out  of  any  property  the  defendant  might 
possess.  It  was  further  shown  that  this  writing  had  been 
given  to  avoid  proceedings  against  the  estate  of  the  father, 
who  had  died  abroad  in  embarrassed  circumstances.  It 
also  appeared  that  the  defendant's  sisters  had  subse- 
quently entered  into  some  written  engagement,  (which  had 
been  destroyed  by  a  fire,)  to  pay  the  same  debt.  At  the 
trial  the  defendant  had  a  verdict ;  and  upon  a  motion  to 
enter  a  verdict  for  the  plaintiff,  the  latter' s  counsel  con- 
tended that  the  wiiting  was  evidence  of  a  loan  by  the 
plaintiff  to  the  defendant,  to  enable  him  to  discharge  his 
father's  debt;  in  which  object,  as  one  of  the  next  of  kin, 
he  was  personally  interested.  But  Tindal,  C.  J.,  said  that 
' '  the  substratum  of  that  suggestion  must  be  that  the  debt 
due  from  Dr.  French"  (the  father)  "was  satisfied.  But 
it  is  inconsistent  with  such  a  supposition,  that  the  plaintiff 
should  afterwards  obtain  from  Dr.  French' s  two  daughters, 
a  note  or  engagement  to  pay  the  same  debt."  The  rule 
was  accordingly  discharged,  on  the  ground  that  the  prom- 
ise was  void  for  want  of  consideration,  and  also  as  being 
witliin  the  statute. 

§  342.  In  the  English  chancery  case  of  Emmet  v.  Dew- 
liUTst,  15  Jurist,  1115,  3  Macnaghten  and  Gordon,  587, 

(c)  S.  C,  3  Scott's  New  Reports,  121. 


-Art  III.]  Collateral  Undektakings.  373 

and  21  Law  Journal,  N.  S.,  Chancery,  497,  decided  in  the 
year  1851,  it  was  held  that  a  promise  was  within  the 
statute,  whereby  the  promisor  undertook  to  substitute  for 
a  liability  resting  upon  another,  the  joint  liability  of  him- 
self and  the  original  debtor.  Such  a  substitution,  as  will 
presently  a])pear,(c?)  suffices  to  satisfy  the  principle  now 
under  examination,  because  the  original  several  lial)ility 
is  thereby  extinguished.  The  reason,  why  this  particular 
case  was  taken  out  of  this  class  of  cases  not  within  the 
operation  of  the  statute,  is  not  given  in  the  opinion ;  and 
it  may  be  that  the  Lord  Chancellor  overlooked  or  dis- 
sented from  the  doctrine,  that  a  joint  promise  extinguishers 
the  original  debt;  but  probably  he  put  his  decision  on 
the  ground,  that  the  plaintiff  did  not  discharge  tlie 
original  liability,  but  only  promised  to  do  so.  The  plaint- 
iff, as  public  officer  of  the  Halifax  Joint  Stock  Banking 
Company,  filed  a  bill  to  get  the  benefit  of  an  indenture; 
whereby,  in  substance,  the  defendant  agreed  with  one 
Turney,  in  behalf  of  himself  and  all  the  other  creditors 
of  Isaac  Dewhurst,  the  defendant' s  brother,  that  in  consid- 
eration of  the  abandonment  of  a  fiat  in  bankruptcy 
against  Isaac,  and  the  acceptance  forthwith  by  the  credit- 
ors of  a  composition ;  he,  the  defendant,  would  guaranty 
a  composition  of  eight  shillings  in  the  pound,  to  all  the 
creditors  of  Isaac,  whose  debts  exceeded  20/.,  who  would 
sign  a  good  and  effectual  release  of  their  claims  against 
Isaac,  before  a  certain  day. 

§  343.  In  pursuance  of  the  agreement,  the  joint  notes  of 
Isaac  Dewhurst  and  of  the  defendant,  for  the  proportionate 
part  of  each  creditor's  debt,  payable  at  certain  periods 
therein  stated,  and  a  release  to  be  executed  by  the  credit- 
ors, were  seasonably  prepared  and  placed  in  the  hands 
of  an  agent,  to  deliver  notes  for  his  proportion  to  each 
creditor,  who  should  execute  the  release  by  the  appointed 
day.  The  banking  company  represented  by  the  plaintiff, 
was  one  of  the  creditors,  to  the  amount  of  nearly  2000^., 

(d)  Post  §  354,  et  seq. 


374  ■  COLLATEEAL   UNDERTAKINGS.  [Ch.   X. 

part  of  which  was  for  two  dishonored  bills  drawn  by 
Isaa(3  upon  one  Carter,  and  accepted  by  him ;  and  it 
declined  to  execute  the  release,  or  surrender  the  bills, 
until  the  result  of  certain  legal  proceedings  then  pending 
against  Carter  should  be  ascertained  ;  for  which  purpose 
it  desired  an  extension  of  time,  urging  as  a  ground  for 
granting  the  extension,  that  the  amount  of  the  composi 
tion  notes  would  be  diminished,  by  a  proportionate  part 
of  whatever  could  be  collected  from  Carter.  But  the 
agent  refused  to  deliver  the  composition  notes,  unless  the 
bills  were  surrendered;  and  after  some  negotiations,  he 
made,  as  was  alleged  by  the  plaintiff,  a  verbal  agreement 
vdth  the  agent  of  the  bank,  to  the  effect  that  the  bank 
should  be  considered  a  consenting  party  to  the  agreement 
for  the  composition,  and  to  the  release  ;  but  that  it  might 
postpone  the  actual  execution  of  the  release,  and  the 
delivery  of  the  bills,  until  after  the  proceedings  against 
Carter  had  terminated.  These  proceedings  having  ex- 
tended beyond  the  time  stated  in  the  indenture,  and 
having  resulted  in  nothing ;  the  bank  insisted  upon  its 
right  to  have  the  benefit  of  the  indenture,  in  consequence 
of  the  alleged  verbal  extension  of  time  within  which  it 
was  to  release  Isaac  ;  and  for  that  purpose  this  bill  was 
filed.  4 

§  344.  The  Yice  Chancellor  (Knight  Bruce)  made  a 
decree,  referring  it  to  a  master  to  inquire  into  the  author- 
ity of  the  defendant' s  agent  to  make  such  an  agreement, 
and  other  matters  preliminary  to  the  granting  of  relief; 
and  from  that  decree  the  defendant  appealed  to  the  Lord 
Chancellor,  (Lord  Truro),  who  dismissed  the  bill  with  costs. 
Assuming,  he  said,  that  the  agent  had  the  necessary 
authority,  nevertheless  the  agreement  was  'vdthin  the 
fourth  section  of  the  statute  of  frauds.  "It  is  a  special 
promise  to  answer  for  the  debt  of  another  person.  It  is 
not  a  promise,  upon  good  consideration,  to  take  the  debt 
exclusively  upon  himself.  It  professes  in  terms  to  be  a 
case  of  guaranty.  The  composition  notes  were  to  be  the 
joint  notes  of  Isaac  Dewhurst,  the  principal  debtor,  and 


Art.  III.]         Collateral  Undertakings.  375 

of  the  defendant  William  Dewliurst,  as  his  guaranty  or 
surety.  The  agreement  is  clearly  within  the  fourth  miction 
of  the  statute  of  frauds  and  must  be  in  writing.  Any 
alteration  of  the  agreement  must  also  be  in  writing." 
*' Therefore  whether  what  passed"  (between  the  two 
agents)  "is  or  is  not  to  be  contended  to  be  a  variation  of 
the  old  agreement,  or  as  the  formation  of  a  new  agreement, 
it  ought  to  be  evidenced  by  some  writing,  and  it  is  clear 
from  the  whole  evidence  that  no  such  writing  exists.  "(<^) 

§  345.  The  modern  American  cases,  with  scarcely  an 
exception,  affirm  the  validity  of  verbal  tripartite  agree- 
ments of  this  character,  at  common  law  and  under  the 
statute  of  frauds.  Thus  in  Watson  v.  Jacobs^  29  Ver- 
mont, 169,  A.  D.  1857,  one  Solomons  had  furnished  a 
piece  of  cloth,  and  employed  the  plaintiff  (a  tailor)  to  make 
a  coat  for  him  ;  after  it  was  made,  the  plaintiff  handed  it 
to  him,  and  they  went  together,  Solomons  carrying  the 
coat,  to  a  place  where  Solomons  said  that  he  would  get  the 
money  to  pay  the  plaintiff.  On  arriving  at  the  place, 
Solomons  said  that  he  had  not  enough  money  to  pay 
for  the  coat,  together  with  his  fare  to  a  place  in  New  York, 
irhither  he  was  going ;  and,  at  his  request,  the  defendant 
promised  to  pay  the  plaintiff's  bill ;  whereupon  the  plaint- 
iff "  permitted  Solomons  to  leave  the  State  with  the  coat." 
These  facts  were  found  by  an  auditor,  who  also  reported 
that  the  plaintiff  had  discharged  Solomons.  Upon  this 
report  the  plaintiff  had  judgment,  which  was  affirmed  by 
the  Supreme  Court.  Rediield,  C.  J.,  delivering  the  opin- 
ion said  :  "The  general  statement  of  facts  indicates  very 
clearly,  that  the  plaintiff  looked  exclusively  to  the  defend- 
ant, lie  did  not  fully  surrender  his  control  over  the  coat, 
until  the  defendant  consented  to  assume  the  debt.  He 
then  permitted  the  first  contractor  to  depart  out  of  the 
country,  and  the  auditor  says  he  was  thereby  discharged 
from  the  debt.  This,  we  think,  can.  import  nothing  else 
but  that  the  defendant  was  the  sole  debtor.     If  this  case 

(e)  See  this  case  further  commented  upon  in  the  note  to  §  284,  ante. 


376  COLLATEIIAL   UNDERTAKINGS.  [Cll.  X. 

stood  against  Solomons,  it  would  be  impossible  to  give 
judgment  against  liim."(/) 

§  346.  The  principle  was  also  very  correctly  laid  down 
and  applied  in  Corhett  v.  Cochran,  3  Hill  (South  Carolina), 
41,  and  Riley's  Law  Cases,  44,  decided  in  1836.  There 
the  plaintiff  had  an  account  against  one  Mrs.  Pellott,  and 
had  sent  the  account  to  her  for  payment ;  soon  after  the 
defendant  called  upon  the  plaintiff  with  the  account,  and 
"promised  to  discharge  the  demand,  by  having  the 
amount  charged  to  himself;"  and  the  plaintiff  accord- 
ingly credited  Mrs.  Pellott  with  the  amount  in  full,  and 
charged  it  to  the  defendant,  no  time  of  forbearance  having 
been  agreed  upon.  The  defence  was  that  the  promise  was 
within  the  statute.  At  the  trial  the  judge  left  it  to  the 
jury  to  say  whether  Mrs.  Pellott  was  privy  to  the  arrange- 
ment, and  whether  the  credit,  discharging  her,  was  entered 
with  the  knowledge  and  by  the  direction  of  the  defend- 
ant. (^)  The  jury  found  a  verdict  for  the  plaintiff.  The 
defendant  moved  for  a  new  trial  and  the  motion  was  unani- 
mously denied  by  the  court.  Earle,  J,,  who  delivered  the 
opinion,  after  citing  cases  to  show  that  if  the  original  debtor 
was  discharged,  the  defendant  was  liable,  proceeded  to  con- 
sider the  question,  whether  Mrs.  Pellott  was  in  fact  and  in 
law  discharged.  After  saying  that  any  promise  may,  before 
breach,  be  discharged  by  words  only,  and  that  although,  as 
a  general  rule,  a  debt  is  not  extinguished  by  the  acceptance 
of  a  security  of  no  higher  nature,  yet  it  will  be  thus  extin- 
guished if  the  parties  expressly  so  agree  ;  he  added :  "  In 
these  cases  the  validity  of  the  new  promise  and  the  dis- 
charge of  the  original  debt  are  mutually  dependent ;  they 
arise  at  the  same  time,  and  result  from  the  agreement  of 

(/)  The  case  of  Croft  v.  Smalhvood,  1  Espinasse,  121  (see  ante  §  154), 
presented  a  strikingly  similar  state  of  facts ;  but  the  court  put  the  decision 
upon  an  entirely  different  ground.  This  is  but  one  of  many  illustrations, 
which  might  be  adduced,  of  the  extreme  difficulty  of  classifying  the  cases 
under  this  branch  of  the  statute  of  frauds. 

iff)  This  appears  from  the  opinion,  although  the  "report"  of  the  judge 
below,  would  indicate  that  he  ruled  expressly  upon  those  points 


Art.  HI.]         Collateral  Undertakings.  377 

tli(3  parties,  tliat  the  existing  debt  slmll  be  extinguished 
and  tlie  first  debtor  discliarged,  in  consideration  of  the 
new  undertaking.  Tliere  is  no  form  of  words  or  writing 
necessary  to  give  (effect  to  these  mutual  undertakings.  If 
the  promise  to  pay  is  binding,  tlie  agreement  to  discharge 
is  equally  so  ;  eacli  is  binding  because  the  other  is." 
But  in  tlie  case  at  bar,  he  continued,  there  was  something 
more  than  a  mere  verbal  agreement,  as  the  plaintiff  had 
entered  a  satisfaction  upon  his  books,  which  constituted 
the  evidence  of  his  demand  ;(r/)  and  he  had  thereby  declared 
that  he  had  no  further  claim  against  Mrs.  Pellott,  in  whose 
stead  he  accepted  the  defendant  as  his  debtor.  In  that 
respect  the  learned  judge  said, that  the  case  at  bar  differed 
materially  from  Ciixon  v.  Chadley,  3  Barnewall  and  Cress- 
well,  591,  where  there  was  nothing  except  a  debit  to  the 
new  promisor.  (//.) 

§  347.  So  in  Walker  v.  Penniman,  74  Massachusetts 
(8  Gray),  233,  A.  D.  1857,  the  defendant  had  an  unfinished 
contract  with  one  Hamblin,  for  certain  piano-fortes,  to  be 
mad(^  by  the  latter;  and  Hamblin  was  indebted  to.  the 
plaintiff  upon  a  promissory  note.  A  verbal  agreement  was 
made  between  the  plaintiff  and  the  defendant,  "in  the 
presence  of  Hamblin,"  to  the  effect  that  the  plaintiff  would 
finish  up  the  work  for  the  defendant,  and  be  paid  the  same 
prices  which  he  was  paying  Hamblin;  "and  the  defend- 
ant agreed,  that  if  the  plaintiff  would  go  on  and  finish  up 
the  instruments,  the  defendant  would  pay  him  the  amount 
of  the  note ;  to  which  the  plaintiff  consented,  and  agreed 
to  give  up  the  note,  and  abandon  all  claim  on  Hamblin, 
and  afterwards  did  give  up  the  note."  It  was  held  that 
the  promise  was  not  within  the  statute,  and  a  verdict  for 
the  plaintiff  was  sustained  upon  exceptions. 

§  348.  On  the  other  hand,  Stone  v.  Symmes,  35  Mas- 
sachusetts (18  Pickering),   467,   A.   D.  1836,  was  a  case 

{g)  See  ante,  §  192,  as  to  the  elTrrt  i.f  iln-  pliiniiir's  boi>ks  as  evidence  in 
South  Carolina. 

Qi)  See  the  case  ante,  §  328. 
48 


378  Collateral  Undertakhstgs.  [Ch.  x. 

where  the  promise,  although  sufficient  at  common  law, 
was  void  by  the  statute,  because  there  was  not  a  sufficient 
discharge  of  the  original  debtor.  There  one  Woodward, 
being  indebted  to  the  plaintiff,  had  agreed  to  pay  him  in 
labor,  whenever  he  should  be  called  upon,  at  a  specified 
price  per  day.  Subsequently  Woodward  agreed  to  work 
for  the  defendant  for  a  specified  time,  at  a  less  price  ;  before 
the  time  had  elapsed,  the  plaintiff  cajled  upon  Woodward 
to  fulfil  his  contract,  and  said  to  the  defendant  that  he 
must  have  his  bill  paid  or  Woodward's  work,  and  asked 
if  he  would  give  up  Woodward  ;  to  which  the  defendant 
answered  that  he  would  not  give  up  Woodward,  and  that 
he  would  see  the  bill  paid,  or  would  pay  the  bill  on 
demand.  This  took  place  in  the  presence  of  Woodward, 
who  testified  that  the  defendant,  at  that  time,  owed  him 
something,  and  that  something  was  due  to  him  at  the  time 
of  the  trial ;  but  he  could  not  tell  how  much  ;  and  that  he 
continued  in  the  defendant' s  employment,  in  consequence 
of  the  latter' s  agreement  to  pay  the  plaintiff,  and  would 
not  have  remained,  if  the  defendant  had  not  so  agreed. 
In  an  action  upon  this  promise,  the  defendant  objected 
that  it  was  without  consideration,  and  also  void  by  the 
statute  of  frauds,  but  the  court  below,  on  a  case  stated, 
held  that  the  plaintiff  could  recover. 

§  349.  The  judgment  thereupon  was  reversed  by  the 
Supreme  Court,  and  the  plaintiff  nonsuited,  Putnam,  J., 
delivering  the  opinion  of  .the  court,  held  that  the  benefit, 
which  the  defendant  received  from  Woodward' s  remaining 
in  his  employment,  constituted  a  sufficient  consideration 
for  the  promise  ;  but  that  it  was  void  within  the  statute  of 
frauds,  because  the  plaintiff's  demand  against  Woodward 
was  not  discharged.  He  said  :  "It  would,  perhaps,  have 
been  sufficient,  if  the  plaintiff  had  then  expressly  dis- 
charged AVoodward  in  consideration  of  the  defendant's 
promise,  so  relying  upon  it  as  an  original  undertaking, 
and  upon  the  loss  of  his  claim  against  Woodward,  as  the 
consideration  for  the  promise  of  the  defendant ;  but  there 
is  no  evidence  of  such  an  express  discharge,  and  no  facts 


Art.  III.]  COLLATEKAL   UNDERTAKINGS.  379 

ai'o  .stated,  from  wliicli  even  an  implied  discliarge  of  Wood- 
ward is  to  be  necessarily  inferred.  AVoodward's  liability 
to  tlie  plaintiff  continued.  At  most,  the  plaintiff  agreed 
to  suspend  his  claim  for  such  time  as  he  pleased,  but  not 
to  abandon  or  discharge  it  at  all  events."  The  opinion 
makes  no  reference  to  the  fact  that. the  defendant  was 
indebted  to  Woodward  at  the  time ;  which  circumstance 
aj)parently  presented  a  question  of  delegation  rather  than 
of  simple  novation;  but  as  the  plaintiff's  demand  was 
small,  it  is  probable  that  the  intention  of  the  parti(^s  was 
that  the  defendant  should  pay  it,  witliout  deducting  it  from 
Woodward' s  wages. 

§  350.  So  in  Ricliardson  v.  Williams,  49  Maine,  558, 
decided  in  1861,  the  promise  was  void,  both  at  common 
law  and  under  the  statute,  because  the  original  debtor  was 
not  discharged,  there  having  been  no  suflScient  concurrent 
action  of  the  three  parties  in  interest,  to  create  a  novation. 
There  a  certain  railroad  company  was  indebted  to  the 
plaintiff;  and  the  defendant  (who  was,  it  is  to  be  gathered 
from  the  case,  an  officer  of  the  company)  verbally  agreed 
to  pay. the  debt  to  the  plaintiff,  and  in  fact  afterwards 
paid  the  amount  into  the  hands  of  one  Means,  for  the 
plaintiff,  and  charged  it  to  the  company.  Means  failed  ; 
and  the  plaintiff  thereupon  brought  this  action.  There 
was  no  evidence,  that  the  company  had  any  knowledge  of 
the  verbal  agreement  between  the  plaintiff  and  the  defend- 
ant ;  or  that  the  plaintiff'  had  ever  discharged  the  company; 
but  it  was  nevertheless  ruled  at  the  trial,  that,  as  the 
defendant  had  charged  to  the  company  the  amount,  and 
had  promised  to  pay  it,  he  must  be  considered  as  having 
the  money  in  his  hands  to  the  use  of  the  plaintiff;  and 
therefore  that  he  was  liable  on  the  count  for  mon(\y  had 
and  received,  unless  he  was  authorized  to  pay  it  to  Means 
as  the  ])laintiff's  agent.  The  jury  found  a  verdict  for  the 
plaintiff.  Upon  an  exception  to  the  decision  of  the  judge 
at  the  trial;  a  new  trial  was  granted,  the  Supnmie  Court 
holding  that  the  promise  was  without  considei-ation,  and 
also  within  the  statute  of  frauds ;  because  the  plaintiff 


380  Collateral  Undertakings.  [Ch.  x. 

relinquished  nothing  and  the  defendant  obtained  nothing, 
as  he  could  not  make  the  company  his  debtor,  by  paying 
or  agreeing  to  pay  its  debts,  without  its  request  or  consent. 

§  351.  A  similar  principle  controlled  the  decision  in  the 
more  recent  case  of  Ellison  v.  WlseJiart,  29  Indiana,  32, 
A.  D.  1867.  There  the  action  was  brought  to  recover  a 
sum  due  to  the  plaintiffs  for  goods  sold  to  the  defendant's 
mother ;  and  there  was  much  conflict  of  testimony  in  the 
court  below ;  the  plaintiffs  recovered  judgment,  from 
which  the  defendant  appealed  to  the  SuxDreme  Court, 
where  the  judgment  was  reversed.  The  strongest  testi- 
mony against  the  defendant,  was  that  of  one  of  the  plaint- 
iffs, who  testified  in  substance  that  some  time  after  the 
goods  were  bought,  he  had  a  conversation  with  the  defend- 
ant, and  informed  him  that  the  plaintiffs  intended  to  sue 
his  mother  immediately  for  the  price.  The  defendant 
requested  him  not  to  do  so,  saying,  "  I  have  means  in  my 
hands,  and  it  may  have  a  tendency  to  make  the  old  lady 
worse."  The  plaintiff  then  said,  "If  you  will  assume 
this  debt  of  $104.77,  and  let  me  charge  it  to  you,  I  will  let 
the  old  lady  alone,  and  wait  with  you  till  Christmas  for 
the  money."  The  defendant  replied,  "You  may  charge 
it  to  me  and  I  will  pay."  The  account  was  thereupon 
charged  to  the  defendant.  Gregory,  J.,  delivering  the 
opinion  of  the  court  on  the  appeal,  said  that  it  was  clear 
that  the  defendant's  promise  was  collateral  unless  his 
mother  was  discharged.  "She  was  not  present;  and  in 
no  wise  participated  in  the  arrangement.  She  had  no 
knowledge  'of  it.  It  does  not  appear  that  she  was  dis- 
charged, or  the  account  against  her  credited."  "The 
defendant  could  not  make  Susannah  his  debtor  by  a  vol- 
untary assumption  of  her  debt  to  the  plaintiffs.  How 
could  she,  in  a  suit  by  the  plaintiffs  against  her  for  this 
account,  set  it  up  as  a  defence  to  her  liability  to  them  ? 
The  plaintiffs  did  not  release  her  in  terms.  If  she  was 
released  it  was  the  result  of  the  arrangement,  not  of  any 
agreement  on  the  part  of  the  plaintiffs."  "Tlie  plaintiffs 
might,  at  any  time  before  the  assent  of  Susannah  was 


Art.  III.]         Collateral  Undertakings.  381 

given  to  the  arrangement,  have  disregarded  this  voluntary 
assumption  by  the  defendant,  and  have  sued  on  the  original 
promise.  This  suit  can  only  be  maintained  on  the  ground 
of  a  substitution  of  one  debtor  for  another." 

§  352.  The  foregoing  cases  are  cited  as  specimens  of  the 
nice  distinctions  which  obtain,  in  the  application  of  this 
rule.  Other  American  cases,  of  the  same  general  charac- 
ter, are  collected  in  the  note.  (/)  In  each  of  them  it  was 
held  that  the  immediate  discharge  of  the  original  debtor, 
was  the  test  by  which  to  determine  the  validity  of  the 
defendant' s  promise  to  paj  the  debt. 

§  353.  It  is  not  necessary,  however,  that  the  debt  of  the 
third  person,  which  is  discharged  by  the  promisee,  should 
be  a  clearly  ascertained  legal  liability ;  provided  it  is  a 
claim,  which  might  form  the  subject  of  an  action.  Thus 
in  Lordv.  Davison,  85  Massachusetts  (3  Allen),  131,  A.  D. 
1861,  a  married  woman  had  invested  money,  w^hicli  was 
her  separate  property,  in  a  firm  of  which  her  husband 

(i)  Jolley  V.  Walker,  26  Alabama,  690,  A.  D.  1855;  per  Roane,  J.,  Wag- 
goner V.  Gray,  2  Hening  and  Munford  (Virginia),  603  (1808);  Draughan  v- 
Bunting,  9  Iredell  (North  Carolina),  10  (1848);  Curtis  v.  Brown,  59  Mas- 
sachusetts (5  Gushing),  488  (1850) ;  Wood  v.  Corcoran,  83  id.  (1  Allen),  405 
(1861);  Brown  v.  Hazen,  11  Michigan,  219  (1863);  Armstrong  v.  Flora,  3 
T.  B.  Monroe  (Kentucky),  43  (1825);  Click  v.  McAfee,  7  Porter  (Alabama), 
62,  per  Collier,  J.  (1838) ;  Antonio  v.  Clissey,  3  Richardson  (South  Carolina), 
201  (1832);  Bason  v.  Hughart,  2  Texas,  476  (1847);  Anderson  v.  Davis,  9 
Vermont,  136  (1837);  Gleason  v.  Briggs,  28  id.,  135  (1855);  Cole  v.  Shurt- 
leflT,  41  id.,  311  (1868);  per  Gibson,  J.,  Allshouse  v  Ramsay,  6  Wharton 
(Pennsylvania),  331  (1841);  Cotterill  v.  Stevens,  10  Wisconsin,  422  (1860). 
In  Walson  v.  Randall,  20  Wendell  (N.  Y.),  201,  A.  D.  1838,  the  same  princi- 
ple was  applied  to  a  promise  of  the  defendant  to  pay  his  mother's  debt,  in 
consideration  of  the  plaintiff's  promise  not  to  sue  her.  The  court  assumed, 
(though  doubting  the  correctness  of  the  proposition,)  that  by  the  terms  of 
the  plaintiff's  promise  the  forbearance  was  to  be  perpetual,  no  time  therefor 
being  specified ;  but  it  was  held  that  the  mother  could  not  have  availed  herself 
of  it,  because  she  was  not  a  party  to  the  agreement,  and  lor  that  rea.<;on  the 
defendant's  promise  was  within  the  statute.  The  effect,  upon  this  class  of 
cases,  of  the  doctrine  mentioned  and  the  cases  collected  in  chapter  xii,  article 
ii,  has  never  been  discussed,  as  far  as  our  observation  extends. 


382  Collateral  Undertakings.  [Cli.  x. 

was  a  member  with  others,  intending  thereby  to  become  a 
partner ;  but,  (as  had  been  held  in  a  previous  case,)  the 
Massachusetts  married  women' s  act  did  not  confer  upon 
her  the  power  to  become  a  partner  with  her  husband. 
The  defendants  bought  the  stock,  etc.,  of  the  firm,  and  in 
addition  to  the  purchase  price  paid  by  them  to  the  firm, 
they  verbally  agreed  with  her  to  pay  her  a  certain  sum 
for  her  "share,  interest,  contribution,  and  investment" 
therein ;  in  consideration  of  which  she  relinquished  what- 
ever rights  she  had  against  the  firm.  At  the  trial  the 
judge  ruled,  that  the  legal  effect  of  the  transaction  was  to. 
make  her  a  creditor  of  the  firm,  and  "that  she  was  not 
the  owner  of  any  part  of  the  stock,  fixtures  and  mate- 
rials ; ' '  but  he  declined  to  rule,  as  requested  by  the 
defendants'  counsel,  that  she  had  no  claim  against  the 
partnership,  which  she  could  enforce  at  law.  The  plaintiff 
had  a  verdict ;  and  upon  the  hearing  of  the  exceptions  to 
the  judge's  rulings,  it  was  held  that  there  was  no  error 
in  the  rulings  actually  made,  as  applied  to  the  facts 
proved  ;  and  that  it  was  entirely  immaterial  whether  the 
refusal  to  rule  as  requested  was  correct  or  otherwise  ;  that 
although  her  rights  were  not  very  well  defined,  neverthe- 
less their  relinquishment  constituted  a  sufficient  considera- 
tion, for  an  express  promise  to  pay  her  therefor ;  and  that 
as  her  claim  against  the  firm  had  been  extinguished,  in 
consideration  of  the  promise  of  the  defendants,  the  latter 
Was  a  substituted  and  not  a  collateral  undertaking,  and 
therefore  was  not  within  the  statute  of  frauds,  {j ) 

(2)  Where  the  third  person  and  the  new  promisor  assumed  a  joint  liability, 
in  discharge  of  a  previous  liability  of  the  third  person  only, 

§  354.  The  principle  now  under  examination  will  sus- 
tain, at  common  law  and  under  the  statute,  a  promise 
made  by  two  persons  jointly,  and  accepted  by  the  cred- 
itor, to  assume  the  payment  of  the  individual  debt  of  one 
of  them ;  as  in  the  familiar  instance  of  a  copartnership 
assuming  the  debt  of  one  of  its  members.     In  such  a  case. 

(y)  It  is  to  be  inferred  in  this  case,  althougli  it  is  not  very  clearlj''  stated, 
that  the  firm  was  a  party  to  the  agreement. 


Alt.  in.]  COLLATKHAL   UXDKRTAKIXGS.  383 

it  is  true,  that  in  one  sense  the  original  debtor  continues 
to  be  liable  for  the  debt ;  but  he  is  not  liable  in  the  same 
manner  as  before.  The  incidents  and  consequences  of  a 
liability  jointly  with  others,  and  of  a  sole  liability,  are 
so  different,  that  the  conversion  of  the  one  into  the  other 
is  very  properly  deemed  an  extinguishment  of  the  old 
liability,  and  the  substitution  of  a  new  oQe  in  its  place. (/r) 
Such  was  the  decision  in  Ex  parte  Lane,  in  re  Lendon,  16 
Law  Journal,  N.  S.,  Bankruptcy,  4,  and  1  De  Gex's  Bank- 
ruptcy Reports,  300,  decided  in  the  year  1847.  This  was 
a  petition  for  leave  to  prove  a  debt  of  4000Z.  against  the 
joint  estate  of  two  bankrupts  (partners) ;  and  it  appeared 
that  before  the  formation  of  the  partnership,  one  of  the 
bankrupts  was  indebted  to  the  petitioner,  in  the  amount 
claimed ;  that  at  the  time  of  the  formation  of  the  partner- 
ship, all  parties  had  verbally  agreed  that  the  firm  became 
liable  to  pay  the  debt,  as  the  money  had  been  embarked 
in  the  business;  and  that  there  had  since  been  several 
conversations  and  transactions  between  the  parties,  on 
that  footing.  It  was  objected,  on  the  part  of  the  assignees, 
that  the  case  was  within  the  statute  of  frauds ;  but  the 
Chief  Judge  (Vice-Chancellor  Knight  Bruce)  said:  "If  A 
is  a  creditor  of  B,  and  B  and  C  propose  to  enter,  or  have 
entered  into  partnership  together,  and  address  themselves 
to  A,  the  creditor  of  B,  and  say,  '  We  wish  that  this  debt, 
due  hitlierto  from  B  alone,  shall  be  a  debt  from  B  and  C 
together,'  and  A  accedes  to  the  proposal,  although  no 
writing  passes,  that  agreement  is  valid  and  effectual,  and 
is  not  impeached  or  affected  by  the  statute  of  frauds. 

(h)  Lord  Denman,  C.  J.,  in  his  opinion  in  the  case  of  Thompson  v.  Percival, 
5  Barnewall  and  Adolphus,  925,  and  3  Novile  and  Manning,  1G7,  thus  speaks 
of  the  correlative  proposition,  that  a  joint  liabiHty  may  be  discharged  by  the 
assumption  in  its  place  of  a  several  liability,  by  one  of  the  parties  already 
jointly  liable:  "Many  cases  may  be  conceived,  in  which  the  sole  liability  of 
one  of  two  debtors  may  be  more  beneficial  than  the  joint  liability  of  two, 
cither  in  respect  to  the  solvency  of  the  parties,  or  the  convenience  of  the 
remedy,  as  incases  of  bankruptcy,  or  survivorship,  or  in  various  other  ways; 
and  whether  it  was  actually  more  beneficial  in  each  particular  case,  cannot 
bo  made  the  subject  of  inquiry."  And  see  further  on  the  same  subject, 
Lyth  V.  Ault,  7  Exchequer,  6G9,  and  21  Law  Journal,  N.  S.,  Exch.,  217. 


384  Collateral  Undertakhstgs.  [Cli.  x 

Tlie  effect  of  it  is,  for  a  valuable  consideration,  to  extin- 
guish the  first ;  and  for  a  valuable  consideration  to  sub- 
stitute the  second  for  it.  Of  course  the  very  vv^ords  I  have 
referred  to  need  not  be  used;  and  if  there  is  sufficient 
evidence  that  the  intention  of  the  parties  was  so,  that  will 
be  as  effectual  as  if  the  most  formal  expressions  had  been 
used."  His  Honor  then  examined  the  evidence ;  which  he 
said,  satisfied  him  as  a  judge  of  fact,  that  such  was  the 
agreement  of  the  parties  in  this  case,  and  he  therefore 
granted  the  application.  (^) 

§  355.  The  same  principle  is  well  illustrated  in  the  case 
of  CorMn  v.  McChesney^  26  Hlinois,  231,  decided  A.  D. 
1861,  where  there  was  in  one  sense  a  double  novation. 
There  the  plaintiff  in  the  court  below,  (McChesney,)  had 
become  indebted  to  the  defendants,  who  were  partners,  in 
the  sum  of  $60,  and  the  defendant  Duffy  was  indebted 
individually  to  the  plaintiff  in  the  sum  of  $119  ;  by  tiie 
latter' s  direction,  in  pursuance  of  a  mutual  agreement 
between  McChesney  and  Duffy,  the  bookkeeper  of  the  firm 
credited  the  plaintiff  in  the  last  named  sum,  and  charged 
it  to  Duffy,  upon  the  books  of  the  firm.  There  was  evi- 
dence that  Corbin,  the  other  defendant,  afterwards  assented 
to  the  arrangement ;  and  it  was  objected  that  as  to  him, 
the  promise  was  within  the  statute  of  frauds  ;  but  the 
court  below  held  that  as  the  debt  against  Duffy  was  extin- 
guished, no  writing  was  necessary  in  order  to  bind  Corbin. 
The  plaintiff  having  recovered  judgment,  the  defendants 
brought  a  writ  of  error,  and  the  judgment  below  was 
affirmed.  It  appears  from  some  observations  in  the  opin- 
ion of  the  court,  although  the  reporter' s  statement  of  facts 
is  silent  on  the  subject,  that  the  firm  had  been  dissolved, 
and  that  Corbin  had  retained  assets  to  pay  this  debt ;  but 
these  facts  seem  to  be  mentioned  more  as  evidence  of  his 
assent  to  the  transaction,  than  as  a  distinct  ground  of  his 
liability;  for  the  court  distinctly  held  that  the  verbal 
promise  was  sufficient,  for  the  reason  given  in  the  court 
below ;  namely,  that  the  individual  debt  due  from  Duffy 

(0  See  also  Butcher  v.  Steuart,  ante,  §§  281  to  284,  and  note. 


Art  III.]         Collateral  Undertakings.  385 

was  extinguished,  and  a  new  debt  due  the  plaintiffs  from 
the  defendants  created  by  the  arrangement. 

§  356.  The  converse  of  the  principle  controlled  the  decis- 
ion of  Sternhurg  v.  Callanen,  14  Iowa,  251,  A.  D.  1862. 
There  the  action  was  founded  upon  an  alleged  agreement, 
between  the  defendants  and  the  plaintiff,  made  soon  after 
the  formation  of  a  copartnership  between  the  defendants ; 
whereby  the  firm  agreed  to  pay  a  debt  due  to  the  plaintiff 
from  the  defendant  Stevens.  There  were  various  defences, 
among  them  that  the  alleged  agreement  was,  as  to  the 
defendants  Callanen  and  Ingham,  without  consideration 
and  within  the  statute  of  frauds.  There  was  some  evi- 
dence of  an  assumption  of  the  debt  by  one  of  the  new 
partners,  in  behalf  of  the  firm,  but  nothing  to  show  that 
the  other  assented  to  it,  or  subsequently  ratified  it.  The 
plaintiff  had  a  verdict  and  judgment,  which  was  reversed 
upon  appeal.  The  court  held  that  in  order  to  sustain  a 
promise  of  that  character,  either  at  common  law  or  within 
the  statute  of  frauds,  "there  must  be  a  novation  of  the 
debt  before  the  new  firm  is  liable.  In  order  to  make  it  a 
new  debt  the  old  one  must  no  longer  exist."  And  the 
judge  having  ruled  at  the  trial  that  the  new  firm  was 
liable  even  if  the  debt  was  not  discharged,  it  was  held 
that  an  exception  to  the  ruling  was  well  taken,  and  the 
judgment  was  reversed  for  that  reason,  and  also  because 
the  alleged  promise  was  the  unauthorized  act  of  one  part- 
ner only.(??^) 

§  357.  The  correlative  of  the  proposition  which  we  have 
been  discussing,  namely,  that  the  creditor  of  a  partnership, 
by  accepting  the  individual  liability  of  one  of  the  partners 
in  lieu  of  the  liability  of  the  firm,  discharges  the  otlier 
partner,  seems  to  have  been  generally  recognized,  without 
reference  to  any  question  arising  under  the  statute  of 
frauds,  (/i) 

(m)  And  see  Taylor  v.  Hillycr,  3  Blackford  (Indiana),  433,  cited  in  chapter 
xiv,  article  iii,  and  other  partnership  cases  there  cited. 
(n)  Collyer  on  Partnership,  §§  557  to  562. 

49 


CHAPTEK    ELEVENTH. 

OASES  DEPENDING  UPON  THE  WOKDS  "  ANOTHEE  PEKSON." 
THE  SUBJECT  COMMENCED  WITH  THOSE  ILLUSTKATING 
THE  GENERAL  PROPOSITION,  THAT  IN  ORDER  TO  BRING 
THE  PROMISE  WITHIN  THE  STATUTE,  IT  MUST  HAVE 
BEEN  MADE    TO   THE  CREDITOR. 


§  358.  The  la>st  chapter  completes  the  examination  of 
that  numerous  class  of  cases  depending  upon  the  words, 
''debt,  default,  or  miscarriages  ; "  constituting  the  fourth 
class  of  the  second  general  division.  We  are  now  to  con- 
sider the  fifth  and  last  class  ;  which  was  stated,  in  defining 
the  terms  of  our  classification,  to  consist  of  those,  where 
there  was  nobody  in  the  transaction,  to  whom  the  term 
' '  another  person ' '  could  apply,  {a)  It  was  mentioned,  at 
the  same  time,  that  upon  principle,  it  would  seem  that  this 
class  might  be  extended  further  than  the  decisions  carry 
it.  Especially  is  this  true  with  respect  to  the  contract  of 
a  factor,  in  whose  hands  goods  are  placed  by  his  principal 
for  sale  upon  credit,  with  the  stipulation  that  he  shall 
respond  for  the  payment  of  the  purchase  price,  by  the 
persons  to  whom  he  shall  make  sales ;  in  other  words,  a 
factor  who  acts  under  a  del  credere  commission.  It 
appears  to  be  well  settled,  in  England  and  in  the  United 
States,  that  contracts  of  this  kind  are  not  within  the 
statute  of  frauds,  but  the  reasons  assigned  for  this  con- 
clusion are  not  entirely  satisfactory.  These  cases  are 
made  to  depend  upon  considerations  connected  with  the 
degree  of  diligence,  which  the  agent  assumes  by  his  con- 
tract ;  whereas  it  is  very  clear  that  no  diligence,  however 
great,  not  even  the  continued  solvency  of  the  purchaser, 
will  exempt  the  agent  from  liability  to  pay  the  debt,  if  the 

(a)  Section  70,  and  note. 


COLLATEKAL  UNDERTAKINGS.  887 

purchaser  has  in  fact  failed  to  discharge  it  at  maturity.  (&) 
In  that  aspect,  such  undertakings  are  contracts  of  guaranty 
in  the  most  undisguised  form,  and  can  only  be  taken  out 
of  tlie  statute  upon  the  ground,  that  altliough  within  its 
letter,  they  are  not  within  its  intent  and  meaning.  But  it 
is  believed,  that  in  truth  they  are  not  within  its  letter ; 
because,  at  the  time  when  the  contract  was  made,  no  per- 
son was  designated,  for  whose  debt  or  default  the  factor 
undertook  to  answer.  In  other  words,  there  was  no  one, 
to  whom  the  term  "another  person"  could  by  any  pos- 
sibility apply. 

§  359.  For  the  same  reason  it  would  appear,  that  when 
the  promise  was  to  pay  the  debt  owing  by  a  person,  who 
had  deceased  intestate,  or  without  having  appointed  an 
executor,  and  no  administrator  had  been  appointed  at  the 
time  of  the  promise,  the  case  was  not  within  the  statute. 
Perhaps,  also,  the  principle  would  extend  to  a  case  where 
the  deceased  had  left  a  will,  designating  an  executor,  but 
the  executor  named  therein  had  not  accepted  the  trust, 
or  qualified,  if  a  special  qualification  is  required  by  statute. 
The  original  debtor  being  dead,  and  no  one  having  become 
liable  for  the  debt,  in  a  representative  capacity,  it  would 
seem  impossible,  in  such  cases,  to  satisfy  the  words, 
"another  person."  But  although  this  state  of  facts  has 
occasionally  been  presented,  and  it  has  been  held  tliat  the 
promise  was  not  within  the  statute,  the  courts  have  failed 
to  assign  this  as  a  reason  for  the  decision  ;  and  hence  we 
can  only  speculate,  whether  it  would  not  have  solved  the 
difficulty,  without  resorting  to  some  other  theory  which 
was  of  less  obvious  application,  (c) 

§  360.  Although  the  point  has  never  been  expressly 
decided,  as  far  as  we  have  noticed,  it  has  been  several 
times  assumed  that  the  statute  includes  a  corporation,  in 

(&)  See  chapter  eighteenth,  article  second. 

(c)  Mease  v.  Wagner,  1  McCord  (South  Carolina),  395 ;  Tomlinson  v.  Gill, 
Ambler,  330;  LeJlow  v,  Becton,  36  Alabama,  696;  Templetons  v.  Bascom, 
33  Vermont.  132. 


388  Collateral  Undertakings.  [Ch.  xi. 

the  word  "person ; "(<^)  ^^^  such  is  doubtless  its  true  sig- 
nification, irrespective  of  any  positive  enactment  that  such 
shall  be  deemed  the  construction  of  that  word,  in  any 
statute  where  it  is  used. 

§  361.  Confining  ourselves,  therefore,  to  the  construction 
given  by  actual  adjudications  to  the  expression  "another 
person,"  we  find  the  principle  growing  out  of  its  use  in 
this  clause  of  the  statute,  to  be  that  which  is  contained  in 
the  following  rule : 

RULE  FIFTH. 

A  promise  to  discliarge  the  debt  or  duty  of  another  is  not  within  the  statute,  unless  it  was  made 
to  the  person  to  whom  the  debt  or  duty  was  to  be  discharged. 


AETICLE  I. 

Origin  of  the  ruloi    How  it  is  reconciled  with  the  language  of  the  clause  under  examination! 

§  362.  Although  this  rule  is  regarded  in  England,  as 
being  the  most  recent  of  all  those  which  are  recognized 
there,  as  controlling  the  application  of  the  statute,  its 
traces  are  to  be  found  in  reported  cases  in  the  United 
States,  from  about  the  beginning  of  this  century.  Some 
of  the  most  perplexing  of  the  early  English  cases  called 
for  its  application,  but  were  decided  upon  other  grounds ; 
the  suggestion  that  such  was  the  true  construction  of  the 
statute,  not  having  occurred  either  to  the  counsel  or  the 
court.  Lord  Denman  claimed  it  as  original  with  him,  in 
delivering  his  opinion,  in  a  case  which  will  presently  be 
cited  at  length,  Eastwood  v.  Kenpon,  decided  in  the  year 
1840 ;  and  the  English  text  books  accordingly  agree  in 
attributing  its  origin  to  his  lordship  ;  but,  to  say  nothing 
of  the  American  cases,  Bayley,  J.,  in  1828,  put  his  opin- 
ion in  Thomas  v.  CooTc,  8  Barnewall  and  Cresswell,  728, 

(d)  Rogers  v.  Waters,  2  Gill  and  Johnson  (Maryland),  64 ;  Wyman  v. 
Gray,  7  Harris  and  Johnson  (Maryland),  409  ;  Emerson  v.  Slater,  22  Howard 
(U.  S.),  28  J  Richardson  v.  Williams,  49  Maine,  558;  Trustees,  etc.,  v.  Flint, 
54  Massachusetts  (13  Metcalf ),  539 ;  Alger  v.  Scoville,  67  Massachusetts 
(1  Gray),  391 ;  Jepherson  v.  Hunt,  84  Massachusetts  (2  Allen),  417 ;  Maule 
V.  Bucknell,  50  Pennsylvania,  39, 


Art.  I.]  Collateral  Undertakings.  389 

upon  the  ground,  that  the  promise  was  not  made  to  the 
creditor,  for  whicli  reason,  he  thought  that  it  was  not 
witliin  the  statute ;  and  the  case  of  Adams  v.  Dansey, 
6  Bingham,  506,  decided  in  1830,  seems  to  have  turned 
upon  the  same  principle.  It  is  to  be  regretted  that  the 
court  failed  to  discover  this  rule  of  construction,  in  either 
of  two  earlier  cases,  which  plainly  called  for  its  applica- 
tion, Howes  V.  Martin,  1  Espinasse,  162,  A.  D.  1794 ;  and 
Castling  v.  Auhert,  2  East,  325,  A.  D.  1802.  Had  the  last 
named  case  been  decided,  as  it  ought  to  have  been,  upon 
this  principle,  many  perplexing  questions,  to  which  it  has 
given  rise,  would  have  been  avoided;  and  considerable 
error  might  have  been  kept  out  of  the  books,  for  the 
entrance  of  which  it  has  at  least  helped  to  open  the 
door,  (a) 

§  363.  The  effect  of  this  rule  is  precisely  the  same  as  if 
the  statute  read,  that  no  action  shall  be  maintained,  upon 
a  verbal  special  promise  to  answer  for  the  debt,  default, 
or  miscarriages  "of  a  third  person."  And  we  have 
accordingly  used  the  latter  expression,  throughout  this 
work,  as  designating  him,  for  whom  the  promisor  under- 
took, or  is  supposed  to  have  undertaken  to  answer,  more 
accurately  than  that  used  by  the  statute  itself. 

§  364.  It  would  be  difficult  to  suggest  a  form  of  words 
more  comprehensive  than  "another  person;"  and  at  first 
sight,  the  meaning  of  the  statute  would  seem  to  be,  that  a 
promise  to  answer  for  the  debt,  default,  or  miscarriages 
of  any  one,  except  the  promisor  himself,  was  within  its 
terms.  But  the  more  limited  construction  given  to  this 
expression,  is  justifiable  upon  consideration  of  the  evident 
intent  of  the  framers  of  the  act,  who  appear  to  have  had 
in  mind  three  persons  ;  and  as  the  word  "another"  calls 
for  a  correlative,  the  latter  may,  without  violence  to  the 
grammatical  construction,  be  found  in  the  person  whose 

(a)  All  the  cases  referred  to  in  this  section,  are  cited  at  length  in  subse- 
quent pages. 


390  COLLATEKAL   llNDERTAKmOS.  [Cll.  XI. 

existence  is  implied,  rather  than  in  him  who  is  expressly 
named ;  and  thus  the  intention  of  the  framers  of  the  stat- 
ute may  be  reconciled  with  its  letter.  In  other  words,  this 
part  of  the  statute  may  be  construed,  as  if  it  read :  "  No 

action  shall  be  brought" "whereby  to  charge 

the  defendant  upon  any  special  promise  to  one  person,  to 
answer  for  the  debt,  default,  or  miscarriages  of  another 
person."  But  whatever  may  be  the  grounds  upon  which 
the  rule  can  be  defended,  it  is  now  well  settled,  both  in 
England  and  in  the  United  States ;  although  it  incidentally 
gives  rise  to  some  very  perplexing  questions,  respecting 
which  the  decisions  are  irreconcilably  at  variance. 


ARTICLE  II. 

Oases  where  the  promise  was  not  made  to  the  creditor  j  where  it  did  not  relate  to  s  liability 
thereafter  to  he  incurred  by  the  promisee  j  and  where  the  promisee  was  the  plaintiff  in  the 
aotion  to  enforce  it. 

§  365.  The  case  whence  is  derived  the  general  recogni- 
tion of  this  rule  in  England,  is  Eastwood  v.  Kenyon,  11 
Adolphus  and  Ellis,  438,  decided  A.  D.  1840.  (a)  There 
the  declaration  stated  in  substance  that  the  plaintiff,  as 
the  executor  of  the  will  of  one  John  Sutcliflfe,  and  as 
guardian  and  agent  of  Sarah  Sutcliflfe,  his  only  daughter 
and  heiress  at  law,  had  during  her  minority  expended 
large  sums  of  money,  in  maintaining  and  educating  the 
said  Sarah,  and  taking  care  of  her  property ;  that  the 
estate  was  insufficient  to  allow  the  plaintiflf  to  make  such 
payments  out  of  it,  and  he  had  advanced  140?.  of  his  own 
moneys  for  the  purpose  ;  and  to  reimburse  himself,  he  had 
borrowed  the  140?.  from  one  Blackburn,  upon  his  promis- 
sory note ;  that  after  Sarah  became  of  age,  she  had  promised 
the  plaintiff  to  pay  the  note,  and  had  actually  paid  one 
year' s  interest  thereon  to  Blackburn  ;  and  that  the  defend- 
ant had  married  the  said  Sarah,  and  afterwards  he  had 
promised  to  pay  the  plaintiff  the  said  note  to  Blackburn ; 
but  had  not  done  so.     Upon  the  trial,  it  was  objected  that 

(a)  S.  C,  3  Perry  and  Davison,  276,  and  4  Jurist,  1081. 


Art.  ir.]  Collateral  Undertakings.  391 

tlie  promise  was  Avitliin  the  statute  ;  but  the  plaintiflf  had  a 
verdict.  A  rule  nisi  was  obtained  to  enter  a  verdict  for 
the  defendant,  on  the  ground  that  the  promise  was  \\ithin 
the  statute,  and  also  on  a  point  of  pleading ;  and  for 
arresting  judgment  on  tlie  ground  tliat  the  declaration 
showed  no  consideration  for  the  promise.  After  argument, 
judgment  was  arrested  ;  but  the  rule  to  enter  the  verdict 
for  the  defendant  was  discharged.  Upon  that  point.  Lord 
Denman,  C.  J.,  delivering  the  opinion  of  the  court,  said: 
*'If  the  promise  had  been  made  to  Blackburn,  doubtless 
the  statute  would  have  applied  ;  it  would  then  have  been 
strictly  a  promise  to  answer  for  the  debt  of  another ;  and 
the  argument  on  the  part  of  the  defendant  is,  that  it  is  not 
less  the  debt  of  another,  because  the  promise  was  made  to 
that  other,  viz.,  the  debtor,  and  not  to  the  creditor;  the 
statute  not  having  in  terms  stated  to  whom  the  promise, 
contemplated  by  it,  is  to  be  made.  But  upon  considera- 
tion, we  are  of  opinion,  that  the  statute  applies  only  to 
promises  made  to  the  person  to  whom  another  is  answera- 
ble. We  are  not  aware  of  any  case  in  which  the  point 
has  arisen ;  or  in  which  any  attempt  has  been  made  to  put 
that  construction  upon  the  statute,  which  is  now  sought  to 
be  established,  and  which,  we  think,  not  to  be  the  true  one." 

§  366.  The  rule  established  by  this  case,  is  frequently 
stated  to  be,  that  a  promise  made  to  the  debtor  is  not 
within  the  statute.  But  it  will  be  observed  that  the  prin- 
ciple laid  down  by  Lord  Denman  takes  a  wider  range, 
and  excludes  from  the  operation  of  the  statute,  all  prom- 
ises not  made  to  the  person  to  whom  another  is  answer- 
able, or  to  some  one  directly  representing  him  for  the 
purpose  of  the  promise ;  not  only  in  cases  where  the  prom- 
isee is  the  debtor,  but  also  where  he  occupies  some  other 
relation  to  the  subject  matter  of  the  promise.  And  such 
has  been  the  effect  given  to  the  decision  in  subsequent 
cases.  Thus,  in  Har greaves  v.  Parsons,  13  Meeson  and 
Welsby,  561,  A.  D.  1844,(2')  the  defendant  had  sold  to  the 

Q})  S.  C,  14  Law  Journal,  N.  S.,  Exch.,  250. 


392  Collateral  Undertakings.  [Cli.  xi. 

plaintiff  a  contract  for  the  sale  by  one  Parker,  of  the 
"j)ut  or  call"  of  certain  foreign  railway  shares,  and  had 
guarantied  the  performance  of  the  agreement  by  Parker. 
In  the  United  States  it  is  well  settled,  that  such  a  promise 
would  be  excluded  from  the  statute  by  the  operation  of 
the  ninth  rule,  under  which  the  case  will  be  cited  more  at 
length,  (c)  But  that  rule  seems  to  be  unknown  in  England  ; 
and  the  court  put  its  decision  upon  the  principle  estab- 
lished in  Eastwood  v.  Kenyon,  holding  that  the  promise 
was  not  one  to  answer  for  a  debt  of,  or  a  default  in  any 
duty  by  Parker  towards  the  promisee ;  because  he  had 
made  no  contract  with  the  plaintiff,  and  there  was  no 
privity  between  them. 

§  367.  And  the  Court  of  Common  Pleas  has  recently 
made  a  novel  application  of  the  doctrine,  where  the  prom- 
isee was  neither  the  debtor  ;  nor  one  to  whom  the  person, 
for  whom  the  promisor  undertook  to  answer,  owed  any 
debt  or  duty  whatever ;  nor  a  representative  of  a  person,  to 
whom  such  a  debt  or  duty  was  owing.  In  Reader  v. 
Kingham,,  13  Common  Bench  Reports,  N.  S.,  344,  decided 
A.  D.  1862,  ((^)  the  plaintiff,  who  was  bailiff  of  the  Buck- 
inghamshire County  Court,  had  received  a  warrant  for  the 
commitment  of  one  Hitchcock  to  jail,  for  non-payment 
of  a  judgment  for  34^.,  recovered  against  Hitchcock  by 
one  Malins  ;  but  by  the  county  court  act,  such  commit- 
ment is  not  a  discharge  of  the  debt,  as  in  the  ordinary 
case  of  a  ca.  sa.,  but  merely  a  means  of  compelling  pay- 
ment, (e)  Malins  had  authorized  the  plaintiff  to  accept 
111.  in  satisfaction  of  the  judgment.  The  plaintiff,  being 
about  to  arrest  Hitchcock  at  the  house  of  the  defendant, 
his  relative,  the  latter  promised  that  if  he  would  abstain 
from  doing  so,  he,  the  defendant,  would,  on  the  following 
Saturday,  either  pay  the  plaintiff  111.  (which  the  plaintiff 


(c)  See  cnapter  eighteenth. 

{d)  Same  case,  9  Jurist,  N.  S.,  797 ;  32  Law  Journal,  N.  S.,  C.  P.,  108 ;  11 
Weekly  Reporter,  366 ;  7  Law  Times,  K  S.,  789. 

(e)  Per  Wilde,  C.  J.,  Ex  parte  Kinning,  4  Common  Bench,  522. 


Art.  II.]  COLLATKKAL   UNDERTAKINGS.  393 

then  said  to  him  that  he  was  authorized  to  accept  in  full 
satisfaction),  or  else  surrender  Hitchcock ;  whereupon  the 
plaintiff  did  abstain  from  arresting  Hitchcock ;  but  the 
defendant  neither  surrendered  him  nor  paid  the  lll.{f) 
The  plaintiff  brought  this  action  on  the  promise ;  at 
the  trial,  a  verdict  was  rendered  for  the  defendant,  under 
the  instruction  of  the  court ;  and  the  plaintiff  obtained  a 
rule  nisi  to  set  it  aside,  and  enter  a  verdict  in  his  favor. 

§  368.  Tills  rule  was  made  absolute,  all  the  judges  deliv- 
ering opinions.  Erie,  C.  J.,  said:  "The  debt  was  due  to 
Malins  from  Hitchcock  ;  the  promise  was  made  to  Reader. 
It  has  been  distinctly  settled,  that  to  bring  the  promise 
within  the  statute,  the  promisee  must  be  the  original 
creditor.  .  .  .  The  debts  are  totally  distinct  debts,  as 
well  as  the  debtors.  No  satisfaction  resulted  to  Malins 
on  account  of  what  passed  between  Kingham  and  Reader. 
Reader  was  the  agent  of  Malins  to  accept  17Z.,  in  sat- 
isfaction of  the  debt  and  costs  in  the  county  court; 
but  he  was  not  his  agent  to  postpone  the  payment. 
If  Malins  had  chosen,  he  might  have  revoked  Reader's 
authority,  between  the  time  of  Hitchcock's  release  and 
the  Saturday ;  and  the  payment  of  111.  would  have  been 
no  discharge  of  Malins' s  claim  under  the  judgment. 
The  payment  of  the  111.,  therefore,  would  not  necessarily 
have  been  a  discharge  of  Malins' s  demand ;  but  only  a 
discharge  or  satisfaction  of  the  contract  between  Kingham 
and  Reader.  The  case  is  clearly  not  one  to  which  the 
statute  of  frauds  can  apply."  Williams,  J.,  concurred, 
without  discussing  the  peculiar  circumstances  of  this 
case,  on  the  ground,  that  the  statute  applies  only  to  "a 
promise  made  to  one  to  whom  another  is  answerable." 
Byles,  J.,  after  concurring  with  the  general  doctrine,  as 
laid  down  by  Williams,  J.,  added:  "It  was  contended 
by  the  counsel  for  the  defendant,  that  Reader  was  the 
agent  of  Malins.     But  the  answer  is  that  the  transaction 

(/)  In  some  of  the  reports  it  is  said  that  the  plaintiflf  had  actually  arrested 
him,  and  that  he  discharged  him  upon  the  promise. 
50 


394  Collateral  Undertakings.  [Cli.  xi 

was  not  for  his  benefit,  and  lie  lias  not  recognized  Reader's 
act."  Keating,  J.,  said  tliat  although  some  of  the  cases 
tended  to  throw  some  doubt  upon  the  proposition,  the 
balance  of  authority  was  clearly  in  favor  of  the  rule,  that 
to  bring  the  case  within  the  statute,  "the  promise  must 
be  made  to  the  original  creditor,  "(p') 

(g)  Although  this  case  presents  some  novel,  and  at  first  sight,  startling 
features;  it  is  believed  that  a  critical  examination  will  show  that  the  decision 
was  correct.  The  point  upon  which  the  case  presents  the  most  embarrass- 
ment, is  the  plaintiflf's  relation  to  Mahns,  the  judgment  creditor;  and  the 
question  suggests  itself  whether,  in  case  the  17?.  had  been  paid  by  the 
defendant,  the  plaintifif  could  have  put  the  money  in  his  pocket,  leaving  the 
judgment  in  full  force  against  Hitchcock?  The  answer  is,  that  although  the 
plaintiff  assumed  to  act  as  Malins's  agent,  in  accepting  the  defendant's  prom- 
ise, he  had  in  fact  no  such  authority ;  but  if  Malinshad  subsequently  accepted 
the  17?.,  he  would  have  affirmed  the  plaintiff's  act.  But  he  might  have  dis- 
affirmed it,  and  sued  the  plaintiff  for  an  escape,  or  a  failure  to  execute  the 
writ;  which  shows  that  at  the  time  of  the  promise,  the  plaintiff  was  not  his 
agent.  No  question  arose  as  to  the  effect  of  a  subsequent  affirmance  of  the 
plaintiff's  act  by  Malins ;  or  whether  the  promise  had  not  been  exacted 
colore  officii ;  or  whether,  if  Hitchcock  had  promised  to  return  to  the  plaint- 
iff's custody,  the  defendant's  promise  would  not  have  been  collateral  to  that 
of  Hitchcock.  In  the  latter  respect,  this  case  is  very  similar  to  Tindal  v. 
Touchberry,  3  Strobhart  (South  Carolina),  177,  A.  D.  1848,  cited  in  §  289, 
as  authority  upon  another  proposition,  which  the  court  held  to  be  also 
apphcable.  It  was  an  action  brought  by  a  constable  who  had  levied  upon  a 
mare,  the  property  of  one  June,  under  a  domestic  attachment  against  June, 
and  the  plaintiff  gave  up  the  mare  to  June,  upon  a  verbal  promise  of  the 
defendant,  which  was  construed  by  the  court  to  mean  that  he  would  "stand 
security,"'  that  the  mare  should  be  delivered  to  the  plaintiff  the  next  day,  or 
pay  the  debt,  amounting  to  $67.47.  On  the  trial,  the  defendant  objected  that 
the  promise  was  within  the  statute;  but  the  plaintiff  had  a  verdict  for  $40,  the 
value  of  the  mare.  The  court  refused  a  motion  for  a  new  trial,  on  the 
ground  that  the  debt  was  discharged  by  the  levy ;  and  also  because  the  con- 
tract was  not  an  engagement,  that  June  should  deliver  back  the  mare,  but 
that  the  defendant  would  do  so.  It  was  said  that  the  bailment  was  made 
to  the  defendant,  and  not  to  June,  the  latter  having  made  no  promise  what- 
ever; and  the  evidence  showing  that  on  the  contrary,  he  was  endeavoring  (,o 
recover  the  mare  forcibly.  As  a  contrast  to  Reader  v.  Kingham,  we  append 
a  statement  of  a  New  York  case,  Bennett  v.  Pratt,  4  Denio,  275,  A.  D.  1847. 
There  the  plaintiffs  had  procured  a  summons,  to  be  issued  against  one  Crosby 
by  a  justice  of  the  peace,  to  collect  a  demand  of  $4.09,  and  had  placed  it  in 
the  hands  of  a  constable  to  serve,  instructing  him  not  to  serve  it  "if 


Art.  II.]  Collateral  Undertakings.  395 

§  369.  The  American  authorities  generally  recognize  the 
rule  very  clearly,  as  the  same  was  laid  down  by  Lord 
Denman  in  Eastwood  v.  Kenyon,  although  there  are  a 
few  decisions,  where  promises  not  made  to  the  creditor  or 
any  one  representing  him,  have  been  held  to  be  within  the 
statute,  without  adverting  to  the  distinction  taken  by  the 
nile.(7i)    The  cases,  English  and  American,  where  the 

Crosby  would  pay  or  secure  the  debt  and  expenses."  Crosby  procured  the 
defendant  to  execute  the  instrument,  upon  which  the  action  was  brought, 
in  these  words:  "I  agree  to  be  security  for  the  payment  of  J.  Crosby's 
debt,  to  J.  &  W.  C.  Pratt"  (the  plaintiffs),  "to  the  amount  of  $4.09,  and  the 
legal  costs,"  etc. ;  "  to  be  paid  in  nine  months."  The  constable  lliereupon 
teceipted  the  demand  to  Crosby  as  paid,  and  omitted  to  serve  the  summons. 
Crosby  at  the  same  time  agreed  to  pay  to  the  defendant  the  sum  which  he 
undertook  to  pay  to  the  plaintiffs.  The  plaintiffs  recovered  judgment  in  the 
court  below,  which  was  reversed  by  the  Supreme  Court,  because  the  defend- 
ant's agreement  did  not  express  the  consideration.  It  does  not  appear 
what  were  the  points  made  by  the  counsel  on  either  side;  and  the  opinion 
contains  an  elaborate  discussion  upon  the  question,  whether  the  writing 
sufficiently  expressed  the  consideration,  under  the  New  York  Revised 
Statutes ;  and  no  reference  to  any  of  the  peculiar  features  of  the  case. 
But  here  the  agreement  was  made  in  terms  with  the  plaintiffs ;  and  although 
the  constable  perhaps  exceeded  his  authority,  they  ratified  his  act  by 
bringing  this  suit.  A  grave  question  arose  upon  the  facts,  whether  the 
discharge  of  the  debt  was  not  sufficient  to  take  the  promise  out  of  the 
statute  within  the  fourth  rule ;  but  it  seems  not  to  have  occurred  to  the 
court  or  the  counsel.  But  one  of  the  oldest  reported  American  cases, 
Thomas  v.  Welles,  1  Root  (Connecticut),  57,  decided  A.  D.  1773,  is  appa- 
rently in  direct  conflict  with  Reader  v.  Kingham.  The  report  states  that 
"Welles,"  the  plaintiff  below,  "was  a  constable  of  the  town  of  Hartford, 
and  had  a  rate-warrant  and  a  rate  against  Jacob  Brown,  for  which  he  levied 
upon  Brown's  body,  and  was  about  to  commit  him  to  jail:  Thomas,  in  con- 
sideration that  Welles  would  suspend  any  further  proceedings  that  night, 
assumed  and  promised,  that  he  would  see  him  forthcoming  to  said  officer  the 
next  morning,  or  he  would  pay  the  debt;  upon  this  Welles  released  said 
Brown,  and  Thomas  did  not  see  him  forthcoming,  nor  has  he  paid  the  debt.'' 
The  court  below,  upon  demurrer  to  a  plea  of  the  statute  of  frauds,  gave 
judgment  for  the  plaintiff,  which  the  Superior  Court  reversed,  saying  that 
this  was  "  manifest  error ;  for  this  is  clearly  a  promise  for  the  debt  and  duty 
of  another." 

Qi)  Mundy  v.  Ross,  3  Green  (N.  J.),  466,  A.  D.  1836;  Campbell  v.  Find- 
ley,  3  Humphrey  (Tennessee),  330,  (1842);  Nixon  v.  Van  Eise,  2  Southard 
(New  Jersey),  491,  (1819.) 


396  COLLATEEAL   UNDERTAKINGS.  [Ch.  XI. 

promise  consisted  of  an  indemnity  against  a  liability,  there- 
after to  be  incurred  by  the  promisee,  on  the  faith  of  the 
promise,  depend  npon  the  same  principle ;  and  those  where 
no  other  person  than  the  promisor  would  be  liable,  in  any 
event,  to  the  promisee,  might  appropriately  be  cited  here  ; 
but  they  are  so  intimately  connected  with  the  cases  where 
the  promise  was  to  indemnify  the  promisee,  under  such 
circumstances  that  he  would  also  have  a  remedy  against 
another  person,  which  are  irreconcilably  conflicting,  that 
it  has  been  deemed  better  to  consider  both  classes  of 
cases  together  in  another  place,  {i)  We  will  now  proceed 
to  the  examination  of  the  American  decisions,  upon  prom- 
ises to  discharge  a  debt  previously  contracted,  or  other 
liability  previously  incurred  by  the  promisee ;  confining 
our  citations  to  the  cases,  where  the  action  is  brought  by 
the  other  party  to  the  contract.  The  question  whether  the 
creditor  can  maintain  an  action  for  the  breach  of  such  a 
promise  ;  and,  if  so,  whether  the  statute  of  frauds  requires 
it  to  be  proved  by  a  writing,  when  the  attempt  to  enforce 
it  is  made  in  that  form,  will  be  the  subject  of  examination 
in  the  next  succeeding  chapter. 

§  370.  It  was  said,  a  few  pages  back,  that  the  principle 
under  discussion  was  recognized  in  the  United  States,  for 
many  years  before  Lord  Denman's  decision  in  Eastwood 
V.  Kenyon.  It  is  in  fact  to  be  found  distinctly  stated  in 
Allaire  v.  Ouland,  2  Johnson' s  Cases,  52,  decided  in  New 
^York  in  the  year  1800  ;  which  will  be  again  referred  to 
with  the  other  cases,  where  the  promise  was  to  indemnify 
the  promisee,  against  a  liability  thereafter  to  be  incurred. 
But  it  was  apparently  overlooked  in  the  next  case,  Myers 
V.  Morse,  15  Johnson,  425,  A.  D.  1818,  where  another 
reason  was  given  for  the  decision,  although  the  facts  called 
for  the  application  of  this  principle.  There  the  court  sus- 
tained an  action  upon  a  verbal  promise  to  indemnify  the 
plaintiffs  against  their  previous  indorsement  of  a  third 
person' s  note,  under  Chancellor  Kent' s  third  proposition  in 

(i)  Chapter  thirteenth. 


Art.  II.]  Collateral  Undertakings.  397 

Leonard  v.  VredenhiLrg7i,{j)  holding  that  there  was  a  new 
and  original  consideration  of  benefit  to  the  promisor,  which 
sufficed  to  take  the  promise  out  of  the  statute. 

§  371.  But  the  correct  rule  was  again  stated  and  applied 
by  the  Supreme  Court  of  New  York  in  Conkey  v.  Hop- 
Jclns,  17  Johnson,  113,  decided  A.  D.  1819.  There  the 
plaintiff  had  bound  himself  to  pay  a  certain  sum  annually 
to  the  trustees  of  a  religious  society,  towards  the  support 
of  the  defendant,  as  a  minister  of  the  gospel ;  and  after- 
wards the  defendant,  for  the  consideration  of  $25,  verbally 
agreed  to  save  the  plaintiff  harmless,  and  indemnify  him 
against  the  subscription ;  the  trustees  sued  the  plaintiflf 
upon  his  subscription,  and  recovered  judgment  against 
him  ;  whereupon  this  action  was  brought  upon  the  defend- 
ant' s  promise  of  indemnity ;  and  the  court  held  that  it 
was  not  within  the  statute,  on  the  ground  that  the  defend- 
ant was  not  bound  to  the  trustees. 

§  372.  The  rule  was  again  laid  down,  even  more  dis- 
tmctly,  in  Chapin  v.  Merrill,  4  Wendell,  657,  A.  D.  1830, 
which  will  also  be  found  in  the  thirteenth  chapter,  and 
again,  in  the  same  year,  when  Eastwood  v.  Kenyon  was 
decided  (1840),  by  the  judgment  of  the  Court  of  Errors  of 
New  York  in  Mersereau  v.  Lewis,  25  Wendell,  243. 
Tliere  the  plaintiffs  sued  upon  a  verbal  agreement,  that 
the  defendant  would  undertake  the  collection  of  the 
debts  due  to  a  late  firm,  composed  of  himself  and  one 
Jacobus,  and  assume  as  his  own  all  that  he  should  not 
have  put  in  suit  by  a  certain  time;  the  plaintifi's,  who 
were  the  assignees  of  the  interest  of  Jacobus,  agreeing 
that  they  would  pay  one-half  of  certain  debts  due  by 
the  firm,  particularly  specified.  It  was  held  by  the 
Court  of  Errors  that  the  defendant's  promise  was  valid, 
because  the  statute  did  not  relate  "to  contracts  made 
with  the  debtor  himself,  to  assume  the  responsibility  of 
paying  his  debts,  or  to  furnish  him  the  means  of  pay- 

(/)  See  §  63. 


398  COLLATEEAL   UnDEETAKINGS.  [Cll.  XI. 

ing  them,  founded  upon  a  valid  consideration  between 
such  debtor  and  the  person  promising,"  the  Chancellor 
citing  as  authority  Eastwood  v.  Kenyon,  decided  in  the 
earlier  part  of  the  same  year.  The  case  is  somewhat 
obscure,  but  probably  the  objection  was  that  the  plaintiffs' 
agreement  was  within  the  statute ;  and  therefore,  that  the 
defendant' s  agreement  was  without  consideration. 

§  373.  In  Westfall  v.  Parsons,  16  Barbour,  645,  decided 
by  the  Supreme  Court  of  the  same  state  in  1853,  the 
defendant  was  the  first  indorser,  and  the  plaintiff  the 
second  indorser  of  a  promissory  note,  made  by  one  Par- 
sons ;  and  before  its  maturity  they  verbally  agreed  with 
Parsons,  in  consideration  that  he  would  make  an  assign- 
ment, preferring  the  note  in  question,  that  they  would 
take  up  the  note,  and  look  to  the  assignment  for  reim- 
bursement. Parsons  made  the  assignment  accordingly; 
and  the  parties  to  this  action  provided  for  the  payment 
of  the  note  before  its  maturity ;  whereupon  the  plaintiff 
brought  this  action  to  recover  the  sum  paid  by  him, 
claiming  that  the  agreement  was  void  by  the  statute  of 
frauds,  and  that  he  was  entitled  to  recover  against  the 
defendant,  as  the  first  indorser  of  the  note.  There  was 
another  point  which  is  not  material  here,  but  upon  this 
point,  the  court  held  that  the  relation  of  the  parties  was 
changed  by  the  agreement;  that  it  bound  them  jointly, 
so  that  the  plaintiff  could  recover  no  more  than  enough, 
to  enforce  the  defendant' s  liability  to  pay  one-half  of  the 
note ;  and  that  the  agreement  was  not  within  the  statute 
because  it  was  an  agreement  with  the  debtor  and-  without 
the  creditor. 

§  374.  In  Massachusetts  the  principle  was  laid  down  in 
the  year  1821  in  the  case  of  Colt  v.  Root,  17  Massachusetts, 
229.  There  the  defendant  was  a  member  of  a  manufac- 
turing corporation,  and  as  such  made  liable  by  statute,  in 
certain  events,  for  the  payment  of  its  debts;  and  the 
plaintiff  held  a  dishonored  note  against  the  corporation, 
upon  which  he  wished  to  raise  the  money,  in  order  to 


Art.  II.]  Collateral  Undertakings.  399 

enable  him  to  pay  a  note  due  by  him  to  one  Janes.  It  was 
thereupon  agreed  between  the  plaintiff,  (who  was  about 
to  leave  the  state,)  and  the  defendant,  that  the  plaintiff, 
instead  of  suing  the  company  upon  the  note,  would 
deposit  it  in  another's  hands  ;  and  if  Janes  sued  the 
plaintiff  upon  the  note  held  by  him,  the  defendant  would 
indemnify  the  plaintiff  from  all  cost  and  harm.  The 
plaintiff  deposited  the  note  accordingly,  and  went  away ; 
and  during  his  absence  he  was  sued  by  Janes,  and  judg- 
ment recovered  and  execution  issued  against  him,  of 
which  the  defendant  had  notice ;  and,  he  neglecting  to  pay 
the  execution,  the  plaintiff's  personal  property  was  sold 
thereon.  In  an  action  upon  the  defendant's  promise,  the 
court  held  that  the  promise  was  not  within  the  statute, 
Parker,  C.  J. ,  saying :  "  It  is  not  a  promise  to  pay  the  debt 
of  another^  it  is  a  promise  to  pay  to  another  the  debt  of 
the  plaintiff;  and  is  in  principle,  like  the  case  of  a  debtor 
giving  money  to  another  to  pay  his  debt,  and  he  neglecting 
to  do  it." 

§  375.  In  Weld  v.  McTiols,  34  Massachusetts  (17  Picker- 
ing), 538,  A.  D.  1836,  the  plaintiff  and  the  defendant  had 
entered  into  an  indenture,  whereby  the  plaintiff  agreed  to 
sell,  and  the  defendant  to  purchase,  a  certain  house  lot  in 
Boston,  by  warranty  deed,  free  from  all  incumbrances ; 
and  the  defendant  agreed  to  indemnify  the  plaintiff  against 
all  claims,  in  consequence  of  a  brick  wall  on  the  adjoining 
lot  being  partly  upon  the  plaintiff' s  lot.  Subsequently  the 
plaintiff  made  the  conveyance,  and  in  consideration  that 
he  would  cancel  the  indenture,  the  defendant  agreed 
verbally  that  if  any  claim  should  be  enforced  against 
the  plaintiff  concerning  the  wall,  the  defendant  would 
reimburse  the  same  to  the  plaintiff.  The  defendant  having 
used  the  wall,  the  plaintiff  was  sued  for  his  share  of  the 
expense  of  erecting  it ;  and  having  been  defeated,  he 
brought  an  appeal  at  the  request  of  the  defendant,  upon 
which  he  was  again  defeated.  In  an  action  upon  the 
promise  it  was  held  that  it  was  not  within  the  statute, 
either  as  relating  to  an  interest  in  lands,  or  as  a  promise 


400  Collateral  Undeetakings.  [Cli.  xi. 

to  answer  for  the  debt  of  another ;  nor  was  it  contrary  to 
the  covenants  of  the  deed;  and  the  cancelling  of  the 
indenture  was  a  sufficient  consideration  to  sustain  it. 

§  376.  The  case  of  PiTce  v.  Brown,  61  Massachusetts  (^7 
Gushing),  133,  A.  D.  1851,  already  cited  under  another 
point,  {Jc)  was  also  decided  on  the  ground  that  the  promise 
was  to  the  debtor  and  not  to  the  creditor,  as  well  because 
it  was  implied  by  law.  And  in  Alger  v.  Scomlle,  67  Mas- 
sachusetts (1  Gray),  391,  A.  D.  1854,  where  the  plaintiff 
transferred  to  the  defendant  certain  shares  of  stock  in  a 
manufacturing  company,  and  a  note  he  held  against  the 
company ;  and  the  defendant,  in  consideration  thereof, 
conveyed  to  him  a  farm,  and  verbally  agreed  to  indemnify 
him  against  his  indorsements  upon  certain  outstanding 
notes  of  the  company,  not  then  payable,  it  was  held  that 
the  promise  was  not  within  the  statute.  Shaw,  C.  J.,  said, 
that  there  was  no  debt  then  due  to  any  body;  but  if 
there  had  been  an  absolute  debt,  it  was  ' '  a  promise  to  pay 
the  plaintiflF's  own  debt,  which  is  equivalent  to  a  promise 
to  pay  the  money  to  him,  by  which  he  himself  could  dis- 
charge the  debt."  And  he  referred  to  the  previous  case 
of  Preble  v.  Baldwin,  60  Massachusetts  (6  Gushing),  549, 
A.  D.  1850,  where  a  promise  by  a  grantor  of  land  to  the 
grantee  to  pay  taxes  upon  the  land,  which  were  not  yet 
assessed,  was  held  not  to  be  within  the  statute,  Wilde, 
J.,  assigning  the  same  reason  for  the  decision  which  has 
been  heretofore  given  in  these  pages,  namely,  that  the 
words  "  another  person  "  refer  to  a  third  person. 

§  377.  The  same  result  was  attained  in  Soule  v.  Alhee, 
31  Vermont,  142,  A.  D.  1858,  although  the  decision  was 
put  upon  a  more  questionable  ground.  This  was  an 
action  to  foreclose  a  mortgage,  given  by  the  defendant 
Albee  to  the  plaintiffs,  to  indemnify  them  against  all 
sums  which  the  plaintiffs  or  A.  G.  S.  should  become  liable 
to  pay  for  the  mortgagor,  "in  consequence  of  signing  or 

(fc)  See  §  98. 


Art.  II.]  Collateral  Undertakings.  401 

otherwise  ;"  and  the  question  was  whether  a  certain  sum, 
paid  by  the  plaintiffs  to  A.  G.  S.,  was  included  in  the  con- 
dition of  the  mortgage.  It  appeared  that  Albee  had  been 
sued  by  one  Buck,  and  a  trustee  process  had  been. issued 
in  favor  of  Buck  against  A.  G.  S.,  who  owed  Albee  $500  ; 
while  that  suit  was  pending,  Albee,  wishing  to  collect  the 
money  due  to  him,  procured  the  plaintiffs  to  make  a  verbal 
agreement  with  A.  G.  S.,  that  if  the  latter  would  pay 
Albee  the  $500,  they  would  pay  him  whatever  judgment 
should  be  rendered  in  favor  of  Buck  against  him  as  trus- 
tee of  Albee ;  relying  upon  which  promise,  A.  G.  S.  paid 
Albee  the  money.  Afterwards  and  before  Buck's  suit 
was  determined,  the  mortgage  in  questijon  was  given,  for 
the  purpose,  as  the  case  states,  of  protecting  the  plaintiffs 
against  their  liability  to  A.  G.  S.,  as  well  as  a  liability 
which  they  had  incurred  by  signing  a  certain  note  for 
Albee.  The  suit  brought  by  Buck  terminated  in  a  judg- 
ment in  his  favor  against  Albee,  and  a  judgment  on  the 
trustee  process  against  A.  G.  S. ;  and  the  plaintiffs,  being 
called  upon  by  the  latter,  paid  an  execution  issued  thereon 
against  him.  It  was  objected  in  this  suit,  that  as  the 
plaintiffs'  promise  to  A.  G.  S.  was  void  by  the  statute  of 
frauds,  the  payment  to  him  was  voluntary,  and  conse- 
quently the  mortgage  did  not  include  their  demand ;  but 
the  court  held  that  the  payment  by  A.  G.  S.  to  Albee, 
was  virtually  advancing  the  money  to  the  plaintiffs,  upon 
their  promise  to  pay  it;  and  that  such  promise  was  not 
within  the  statute  of  frauds,  but  was  a  valid  undertaking, 
which  A.  G.  S.  might  have  enforced  against  the  plaintiffs ; 
so  that  it  came  within  the  terms  of  the  mortgage. 

§  378.  So  in  Mske  v.  McGregory,  34  New  Hampshire,  414, 
A.  D.  1857,  the  plaintiff  had  sold  his  real  and  personal  prop- 
erty at  auction,  and  certain  land  had  been  struck  off  to  one 
F.  F.  At  the  time  when  the  land  was  offered,  the  auctioneer 
stated  that  there  was  a  mortgage  upon  it  to  one  Keyes, 
and  bids  were  invited  for  the  value  of  the  land  beyond  the 
mortgage.  Other  parol  evidence  was  given,  tending  to 
show  an  understanding,  that  the  purchaser  should  pay 
51 


402  COLLATEEAL   UNDERTAKINGS.  [Ch.  XI. 

Keyes.  The  defendant  was  present  at  the  sale,  and 
afterwards  purchased  the  bid  of  F.  F.  for  $25  ;  and  a  deed 
was  thereupon  executed  by  the  plaintiff  to  the  defendant, 
with  the  usual  covenants  for  title,  excepting  as  against 
the  Keyes  mortgage.  This  action  was  brought  for  breach 
of  a  promise  to  pay  the  mortgage,  and  the  plaintiff  had  a 
verdict,  which  the  court  refused  to  set  aside.  It  was  held 
that  the  evidence  warranted  the  jury  in  finding,  that  the 
defendant  was  to  take  the  place  of  F.  F.,  and  made  the 
promise  declared  upon  ;  and  that  inasmuch  as  it  was  a 
promise  made  to  the  debtor  himself  and  not  to  the  creditor, 
to  which  the  creditor  was  not  privy,  it  was  not  within  that 
part  of  the  statute  relating  to  a  promise  to  answer  for  the 
debt  of  another.  And  the  court  also  held  that  it  was 
not  within  that  part  of  the  statute  relating  to  a  contract 
for  the  sale  of  lands. 

§  379.  In  Connecticut  the  principle  was  correctly  laid 
down  by  Gould,  J.,  as  early  as  1816,  in  Stoclcing  v.  Sage, 
1  Connecticut,  519,  although  the  other  judges  put  the  decis- 
ion upon  different  grounds  ;  and  it  was  distinctly  affirmed 
by  the  judgment  of  the  court  in  Pratt  v.  Humphrey,  22 
Connecticut,  317,  A.  D.  1853.  There  the  plaintiff '  s  declara- 
tion alleged,  in  substance,  that  the  defendants  were  admin- 
istrators on  the  estate  of  one  Andrew  Pratt ;  and  that  in 
consideration  that  the  plaintiff  would  forbear  to  present 
for  allowance,  a  debt  of  $1,200,  due  to  him  by  the  deceased, 
the  defendants  promised  to  him  to  pay  whatever  debts  he, 
the  plaintiff,  might  owe,  to  the  amount  of  $200 ;  and  to 
apply  that  amount  of  money  to  the  liquidation  of  the 
plaintiff' s  debts  ;  and  furnish  him  that  amount  of  money 
to  be  applied  to  the  payment  of  his  debts  ;  concluding  with 
an  allegation  of  a  breach.  To  which  declaration  the  defend- 
ants pleaded  that  there  was  no  note,  etc.,  in  writing,  and 
the  plaintiff  demurred  to  the  plea.  The  court  below  gave 
judgment  for  the  plaintiff  upon  the  demurrer,  which  was 
affirmed  by  the  Supreme  Court,  Storrs,  J.,  saying,  upon 
the  point  that  this  was  a  promise  to  answer  for  the  debt, 
etc.,  of  another  :  "The  promise  here  was  made,  not  to  the 


Art.  II.]  Collateral  Undertakings.  403 

creditors  of  tlie  plaintiff,  but  to  himself,  to  pay  debts 
wliicli  lie  owed  to  such  creditors.  Whether  the  terms  of 
■ttie  statute  are,  or  are  not,  sufficient  to  embrace  such  a  prom- 
ise, the  object  and  occasion  of  it  show  plainly,  that  it  was 
intended  to  apply  only  to  promises  made  to  the  person  to 
whom  another  is  answerable,  and  that  such  therefore  is 
its  true  construction."  The  case  is  cited  elsewhere  upon 
the  other  point  taken,  namely,  that  it  was  a  special  prom- 
ise by  administrators  to  answer  damages  out  of  their  own 
estates.  (Z) 

§380.  This  principle  was  also  fully  recognized  in  Ken- 
tucky, in  the  recent  case  of  North  v.  Bobinson,  1  Duvall, 
71,  A.  D.  1863,  There  the  petition  alleged,  in  substance, 
that  the  plaintiff  had  subscribed  for  $2,000  of  stock  in  a 
certain  railroad  company ;  for  which  he  had  executed  to 
the  company  a  mortgage  and  two  bonds,  payable  in  ten 
years,  with  semi-annual  interest ;  that  the  company  sub- 
sequently passed  a  resolution,  that  all  subscribers,  in  the 
plaintiff's  situation,  might  reduce  their  stock  one-half,  by 
paying  thirty  one  per  cent  of  the  reduced  subscription,  at 
a  specified  time,  and  agreeing  to  pay  the  balance  of  the 
reduced  subscription  whenever  called  upon ;  that  the 
defendant,  being  interested  in  the  company,  urged  the 
plaintiff  to  accept  those  terms  ;  that  the  plaintiff  hesitated 
so  to  do,  on  the  ground  that  he  did  not  believe  that  his 
acceptance  would  have  the  effect  to  release  him  from  his 
original  subscription;  that  in  order  to  induce  him  to 
accept  the  terms  the  defendant  undertook  to  save  him 
harmless  on  account  of  his  original  subscription.  And 
that  relying  upon  such  promise  he  accepted  the  terms, 
and  paid  the  thirty  one  per  cent  within  the  specified  time, 
and  the  balance  of  the  $1,000  when  called  upon ;  but 
the  company  had  enforced  the  original  subscription,  and 
recovered  judgment  for  the  remainder  of  it,  which  the 
plaintiff  had  been  compelled  to  pay.  A  demurrer  to  this 
petition  was  sustained  in  the  court  below,  on  the  ground 

(0  See  §  28. 


404  Collateral  Undeetakings.  [Ch.  xi. 

that  there  was  no  allegation  that  the  promise  was  in  writ- 
ing. On  appeal  the  judgment  was  reversed,  on  the  ground 
that  the  promise  was  not  made  to  the  company,  but  to 
the  debtor  himself,  the  court  remarking  that  this  doctrine 
"may  be  now  regarded  as  conclusively  settled  both  in 
England  and  in  this  country." 

§  381.  Other  American  cases  (besides  those  in  the  thir- 
teenth chapter)  in  which  it  has  been  held  that  a  promise 
made  to  the  debtor  was  not  within  the  statute,  and  it  has 
accordingly  been  enforced  between  the  original  parties  to 
the  contract  will  be  found  in  the  note,  {m)  This  constitutes 
for  obvious  reasons,  the  state  of  facts  upon  which  the 
question  generally  arises.  But  occasionally  it  happens, 
as  in  Header  v.  Kingham,  that  the  promisee  was  neither 
the  creditor  nor  the  debtor. 

§  382.  Thus  in  Perkins  v.  Littlefield,  87  Massachusetts 
(5  Allen),  370,  A.  D.  1862,  the  defendant,  who  was  the 
owner  of  a  vessel,  requested  the  plaintiff  to  pay  to  certain 
ship  chandlers  a  debt  for  supplies,  contracted  by  the 
master  of  the  vessel,  promising  to  repay  the  amount ;  and 
it  was  held,  (overruling  the  exceptions  taken  at  the  trial,) 
that  the  promise  was  not  within  the  statute.  Bigelow,  J., 
delivering  the  opinion  of  the  court,  said,  "It  was  not  a 
promise  to  pay  the  debt  of  another,  in  the  sense  in  which 
those  words  are  used  in  the  statute.  Such  would  have 
ben  the  case,  if  the  defendant  had  agreed  to  pay  the  debt 
to  the  persons  to  whom  it  was  originally  contracted,  and 
they  had  brought  an  action  upon  such  promise.  It  is  the 
well  settled  doctrine,  that  the  provision  in  the  statute  is 
applicable  only  to  promises  made  to  the  person  to  whom 
another  is  answerable."     The  learned  judge  added  that 

(m)  Hardesty  v.  Jones,  10  Gill  and  Johnson  (Maryland),  404,  A.  D.  1839; 
Rice  V.  Carter,  11  Iredell  (North  Carolina),  298(1850);  Rider  v.  Riley,  2 
Maryland  Chan'^ery  Decisions,  16(1849);  Howard  v.  Coshow,  33  Missouri, 
lis  (1SG2);  Tibbettsu.  Flanders,  18  New  Hampshire,  284  (1846);  Shook  v. 
Van  Meter,  22  Wisconsin,  532  (1868). 


^rt.  II.]  Collateral  Undektakings.  405 

this  was  a  new,  distinct  and  independent  agreement  with 
the  plaintiff,  to  repay  mont^y  (^xpend(»d  by  liim  at  the 
instance  of  tlie  defendant,  and  u2:)on  his  promise  to  repay 
it ;  in  which  aspect  of  the  case  it  was  wliolly  immaterial 
whether  the  defendant  was  or  was  not  liable  for  the 
original  debt.(7i) 

§  383.  It  may  therefore  be  safely  said,  that  the  rule  is 
well  established,  in  England  and  the  United  States,  that 
in  order  to  render  the  statute  of  frauds  at  all  applicable, 
to  a  promise  to  assume  the  debt  or  duty  of  another  per- 
son, the  promisee  must  be  the  person  to  whom  the  debt  or 
duty  is  owing.  Of  late  years,  some  obscurity  has  been 
cast  around  this  principle,  by  the  general  language  used, 
not  only  in  some  of  the  cases  where  the  right  of  a  creditor 
to  enforce  such  a  promise  is  denied,  (o)  but  in  others  where 
it  is  argued  that  every  promise  to  assume  a  pre-existing 
debt,  of  a  person  other  than  the  promisor,  is  within  the 
statute,  if  the  debt  subsists  after  the  promise ;  unless  the 
consideration  upon  which  it  was  founded,  consisted  of  a 
fund  furnished  by  either  the  creditor  or  the  debtor,  for  the 
purpose  of  paying  the  debt.{p)  But  whatever  may  be  the 
correct  rule,  with  respect  to  the  questions  directly  involved 
in  those  cases,  the  general  language  used  in  the  course  of 
the  argument,  was  not  intended,  it  is  believed,  to  go  beyond 
those  questions  ;  certainly  not  to  infringe  upon  the  princi- 
ple now  under  examination. 

§  384.  The  decisions  which  hold  that  the  promisee  may 
sustain  an  action,  upon  a  verbal  promise  to  indemnify  him 
against  his  own  debt,  when  it  was  founded  upon  any 

(n)  See  also  Pearce  v.  Blagrave,  ante,  §  163.  The  case  of  Oliphant  v. 
Patterson,  56  Pennsylvania,  368,  A.  D.  1867,  is  of  the  same  general  char- 
acter. There  the  plaintiff  had  paid  certain  debts  of  a  firm  of  which  the 
defendant  was  a  member,  at  the  defendant's  request;  and  the  objection  that 
the  statute  prevented  a  recovery,  without  joining:  all  the  mcmbtTS  of  the 
firm,  was  overruled. 

(o)  Cases  in  chapter  xii,  article  iii. 

(jj)  For  instance,  Fuliam  v.  Adams,  37  Vermont,  391. 


406  Collateral  Undertakit^gs.  [Ch.  xi. 

valuable  consideration,  are  too  nnmerons  and  of  too  high 
authority  to  be  overthrown  by  general  dicta ;  and  it  is 
believed  that  no  attempt  to  do  so  by  direct  decision, 
would  command  the  approbation  of  the  profession.  We 
must  acknowledge  that  the  principle  is  sustained  by  incon- 
clusive reasoning,  and  that  it  opens  the  door  to  many 
difficult  questions;  but  after  it  has  been  settled  for  so 
many  years,  and  approved  in  so  many  cases,  an  attempt 
to  uproot  it  would  involve  consequences  far  more  disas- 
trous than  any  which  could  possibly  ensue  from  suffering 
it  to  remain.  And  every  attempt  to  escape  from  the  results 
to  which  it  legitimately  leads,  by  engrafting  arbitrary  ex 
ceptions  upon  it,  will  lead  to  greater  perplexity  and  con 
fusion,  than  to  allow  it  to  be  pushed  to  its  logical  conclu- 
sions; a  proposition  which  we  shall  have  occasion  to 
maintain  and  apply,  in  each  of  the  two  folio  wing  chapters. 


CHAPTER   TWELFTH. 

THE  SAME  SUBJECT  CONTINUED  —  CASES  WHERE  A  CREDITOR 
SEEKS  TO  ENFORCE  A  CONTRACT  BETWEEN  HIS  DEBTOR 
AND  ANOTHER  PERSON,  PROVIDING  FOR  THE  PAYMENT 
OF  THE  DEBT  BY   THE   LATTER. 


ARTICLE  I. 

The  questioa  arising  under  the  statute  stated,  and  examined  npon  principle  i  the  English  rule 
with  respect  to  the  creditor's  right  to  sue, 

§  385.  Before  proceeding  to  the  discussion  of  the  other 
classes  of  cases  governed  by  the  rule,  that  a  promise  to 
pay  the  debt  of  another  is  not  within  the  statute,  unless  it 
is  made  to  the  creditor ;  it  is  necessary  to  consider  a  ques- 
tion which  we  regard  as  depending  upon  that  rule,  as  the 
same  is  explained  and  applied  in  the  cases  examined  in 
the  last  chapter ;  namely,  in  what  manner  the  statute 
affects  the  right  of  a  creditor  to  maintain  an  action,  for  the 
breach  of  a  promise  to  pay  the  debt,  which  has  been  made 
to  his  debtor,  upon  a  consideration  proceeding  from  the 
latter.  It  will  be  seen,  that  althougli  the  step  between  an 
action  upon  such  a  promise  by  the  debtor,  and  one  by  the 
creditor,  is  but  short,  its  consequences  are  quite  moment- 
ous, involving  the  indirect  accomplishment  of  a  result, 
which  the  statute  clearly  forbids  to  be  accomplished 
directly.  Indeed  it  seems,  at  first  sight,  a  mere  evasion 
of  the  statute  to  say,  that  when  it  has  confessedly  forbid- 
den an  action  to  be  maintained  by  A,  upon  B's  verbal 
promise,  made  to  him,  to  pay  him  a  debt  due  to  him  by 
C ;  it  will  nevertheless  permit  A  to  maintain  such  an  action, 
provided  B  has  made  the  same  promise  to  C.  But  per- 
haps, upon  a  further  examination  of  the  subject,  this  will 
not  appear  so  unreasonable. 


408  Collateral  Undertakings.         [Ch.  xii. 

§  386.  Tlie  doubts  upon  this  question  are  confined  to  the 
United  States ;  for  in  England  it  is  altogether  prevented 
from  arising,  not  only  because  it  is  diametrically  opposed 
to  the  second  proposition  deduced  from  the  rule  in  TatlocJc 
V.  Harris  ;  (a)  but  also  because  it  contravenes  the  rule  of 
the  common  law,  that  a  stranger  to  the  consideration 
cannot  maintain  an  action  upon  a  contract.  The  latter 
rule  has  been  somewhat  relaxed  by  the  English  courts  in 
modern  times  ;  but  not  sufficiently  to  permit  a  creditor  to 
sue,  in  the  case  now  under  examination.  This  appears  to 
be  entirely  settled  by  the  modern  English  decisions ; 
although  the  American  authorities  in  support  of  the 
action  are  founded,  more  or  less  directly,  upon  certain 
early  English  cases,  which  were  supposed  to  establish  the 
principle,  that  a  person  for  whose  benefit  a  contract  was 
made,  might  enforce  it  at  law,  although  he  was  a  stranger 
to  the  contract  and  to  the  consideration.  (5) 

(re)  See  ante,  §  326.  But  an  attempt  was  made  to  reconcile  it  with  that 
proposition  in  Warren  v.  Batchelder,  16  New  Hampshire,  580. 

(h)  The  principal  of  these  is  Button  and  wife  v.  Poole,  29  Car.  II,  in  the 
King's  Bench,  reported  in  1  Ventris,  318  and  332;  3  Keble,  786,  814,  830,^ 
and  836 ;  2  Levinz,  210;  and  T.  Jones,  102;  and  affirmed  upon  writ  of 
error  to  the  Exchequer  Chamber,  T.  Raymond,  302.  These  various  reports 
are  very  discordant  respecting  the  minor  incidents  of  the  case,  some  of  them 
representing  that  facts  were  before  the  court,  the  absence  of  which  is  :.tated 
in  others,  to  have  formed  grounds  of  objection  to  the  recovery.  As  it  came 
up  on  a  motion  in  arrest  of  judgment,  the  contents  of  the  declaration  are  all 
that  is  really  material;  and  no  doubt- they  are  most  correctly  given  in  the 
report  in  Raymond,  which  professes  to  contain  an  abbreviation  of  the  plead- 
ing itself.  The  action  was  assumpsit;  and  ihe  substance  of  that  part  of  the 
declaration  upon  which  the  question  arose,  was,  that  whereas  Sir  Edward 
Poole,  father  of  Grizil  Button,  the  female  plaintiff,  was  possessed  of  certain 
timber  trees,  growing  in  a  certain  park,  etc.,  and  intended  to  cut  down  and 
sell  the  same  to  raise  portions  for  his  children  ;  the  defendant,  in  considera- 
tion that  Sir  Edward  would  forbear  from  cutting  the  trees,  "  did  promise 
the  said  Sir  Edward,  that  he,  the  said  defendant;,  Avould  well  and  faithfully 
pay  to  the  said  Grizil,  1,000?.;"  that  Sir  Edward  did  not  cut  the  trees,  but 
the  defendant  did  not  pay  Grizil  while  sole,  or  the  plaintiffs,  or  either  of 
tl.em,  after  their  marriage,  the  said  sum  of  1,000?.,  although,  etc.  We  also 
gather  from  the  other  reports,  as  part  of  the  history  of  the  case,  that  the 
trees  were  in  a  park  attached  to  an  estate,  of  which  Sir  Edward  was  tenant 


Art.  I.]  COLLATEEAL   UNDERTAKINGS.  409 

§  387.  It  is  evident  that  the  question,  whether  the  statute 
of  frauds  permits  auch  an  action  to  be  maintained,  is  not 
necessarily  connected  in  any  manner  with  that  arising  at 
common  law.  Indeed  the  latter  question  is  frequently 
presented  in  such  a  form,  that  the  statute  can  have  no 
application  ;  as,  for  instance,  where  the  contract  is  evi- 
denced by  a  writing  expressing  the  consideration ;  or, 
being  verbal,  is  for  the  performance  of  some  act  for  the 
benefit  of  the  plaintiff,  other  than  the  payment  of  a  debt 
due  to  him  by  the  other  party.  But  in  many  cases  the 
controversy  arises  upon  a  promise,  either  verbal,  or  con- 
tained in  some  writing  which  does  not  satisfy  the  require- 
ments of  the  statute,  to  pay  a  debt  due  from  the  promisee 
to  the  plaintiff;  and  then  the  effect  of  the  statute  and  the 
common  law  question  are  both  involved  in  the  decision, 
and  discussed  in  the  opinion,  the  one  reflecting  upon  the 
other.     Again,  the  cases  which  hold  that  the  statute  is 

for  life,  without  impeachment  of  waste;  that  the  defendant  was  his  son  and 
the  remainderman;  and  that  Grizil's  mother,  who  was.  the  executrix  of  Sir 
Edward,  was  the  only  witness,  "so  cannot  bring  the  action  as  on  a  promise 
to  him."  After  verdict  for  the  plaintiff,  a  motion  was  made  in  arrest  of  judg- 
ment, and  upon  the  argument  the  judges  appeared  to  be  divided  ;  at  a  sub- 
sequent term  two  new  judges  had  been  made,  and  the  cause  was  argued 
anew.  The  substance  of  the  arguments,  which,  as  well  as  the  remarks  of 
the  judges,  are  given  at  considerable  length,  was,  for  the  defendant,  that  the 
action  should  have  been  brought  by  the  father  or  his  executors,  because  the 
daughter  was  not  privy  to  or  interested  in  the  consideration ;  that  the  case 
was  different  from  many  others  put,  as  for  instance,  where  a  father  promises 
J.  S.,  that  if  the  latter's  son  will  marry  his  daughter,  he  will  give  him  1,000Z. ; 
there  the  son  might  sue,  for  he  vvas  privy  to  the  consideration ;  but  here  the 
daughter  had  done  nothing,  and  she  could  not  have  released  the  defendant; 
but  Sir  Edward  might  at  any  time  have  released  him,  or  he  might  have  cut 
the  wood  after  the  promise.  The  plaintiff  had  judgment;  according  to 
1  Ventris,  332,  Scroggs,  C.  J.,  said:  "It  might  be  another  case,  if  the 
money  had  been  to  have  been  paid  to  a  stranger;  but  there  is  such  a  near- 
ness of  relation  between  the  father  and  child,  and  'tis  a  kind  of  debt  to  the 
child  to  be  provided  for,  that  the  plaintiff  is  plainly  concerned."  This  sub- 
stantially accords  with  the  report  in  Levinz,  which  adds,  "for  the  son  hath 
the  benefit,  by  having  of  the  wood,  and  the  daughter  hath  lost  her  portion 
by  this  means."  But  Sir  ThomavS  Jones  states  that  the  ground  of  the  decis- 
ion was  merely  that  "the  benefits  belong  to  the  daughter,  and  she  may 
53 


410  Collateral  Undertakings.  [Ch.  xii. 

inapplicable  to  such  promises,  are  not  in  harmony  respect- 
ing the  reasons  for  its  failure  to  apply ;  and  the  discussion 


release  it."  The  report  of  the  case,  in  the  Exchequer  Chamber,  says  only, 
with  respect  to  the  reason  for  the  decision,  that  Pollexfen,  for  the  plaintiff, 
argued  that  "  the  action  is  maintainable  by  the  party  to  whom  the  promise 
was  made,  or  to  "  (by)  "  the  cestuy  que  use  the  promise  was,  indifferently ; 
and  of  this  opinion  were  all  the  justices  and  barons,  and  judgment  was 
affirmed."  T.  Raymond,  302.  The  case  has  been  much  criticised;  and 
those  who  deny  the  creditor's  right  to  maintain  the  action,  explain  it  as 
having  proceeded  upon  the  ground  taken  by  Scroggs,  and  so  not  to  be  a 
precedent  where  the  consideration  proceeds  from  an  entire  stranger.  Other 
early  cases  where  the  beneficiary  was  allowed  to  maintain  the  action,  are 
open  to  the  same  critici.^m.     Sprat  v.  Agar  (A.  D.  1658)  cited,  together  with 

an   anonymous   case,  in  Bourne  v.  Mason,    1  Ventris,  G;  Thomas  r, , 

W.  Style,  461  (A.  D.  1655).  But  on  the  other  hand,  several  very  strong 
expressions,  and  some  decisions,  may  be  found  scattered  through  the  English 
reports,  down  to  as  late  a  period  as  the  commencement  of  the  present  cen- 
tury, to  the  effect  that  the  person  for  whose  benefit  a  contract  between 
others  was  made,  may  maintain  an  action  for  its  breach,  irrespective  of  any 
relationship  which  he  might  bear  to  the  promisee.  Starkey  v.  Mill,  Style, 
296  (A.  D.  1651);  Ward  v.  Evans,  2  Lord  Raymond,  928  (1704);  Martyn  v. 
Hind,  2  Cowper,  437,  see  p.  443  (1776);  Per  Buller,  J.,  Marchington  v. 
Vernon,  1  Bosanquet  and  Puller,  101,  note  c  (1786)  ;  Per  Lord  Alvanley, 
C.  J.,  Piggott  V.  Thomson,  3  Bosanquet  and  Puller,  149  and  note  a  (1802). 
And  see  Carnegie  v.  Waugh,  2  Dowling  and  Ryland277  (1823).  But  now  it 
is  conclusively  settled,  by  the  uniform  course  of  the  modern  EngTish  decisions, 
that  a  person  who  is  a  stranger  to  the  contract  and  to  the  consideration, 
cannot  sue  for  a  breach  of  the  contract;  and  it  is  debatable  whether  one 
Avho  is  a  stranger  to  the  consideration  can  sue,  even  if  he  was  a  party  to  the 
contract.  Bourne  v.  Mason,  1  Ventris,  6  (A.  D.  1669);  Crow  v.  Rogers, 
1  Strange,  592  (1724);  Price  v.  Easton,  4  Barnewall  and  Adolphus,  433, 
and  1  Nevile  and  Manning,  303  (1833) ;  Per  Maule,  B.,  Tollit  v.  Sherstone, 
5  Meeson  and  Welsby,  283,  and  7  Dowling's  Practice  Cases,  455  (1839) ; 
Per  Patteson,  J.,  Thomas  v.  Thomas,  2  Queen's  Bench,  859  (1842);  Per 
Parke,  B.,  Jones  v.  Robinson,  1  Exchequer,  456  (1847),  and  per  totam 
curiam',  according  to  11  Jurist,  934;  Scott  v.  Pilkington,  2  Best  and 
Smith,  li,  (A.  D.  1862);  S.  C,  8  Jurist,  N.  S.,  557,  31  Law  Journal,  N.  S., 
Q.  B.,  81,  6  Law  Times,  N.  S.,  21.  The  same  principle  is  to  be  found 
in  a  still  more  recent  case  in  the  Irish  Common  Pleas,  McCoubray  v. 
Thomson,  2  Irish  Reports,  Common  Law,  226,  and  16  Weekly  Reporter, 
367  (1868)»  See  also  the  cases  raising  an  exception  to  the  rule,  where 
the  defendant  has  received  money  from  another  person  to  the  use  of  the 
plaintiff ;   in  which  case  it  seems  that  the*  action  can  be  maintained,  only 


Art.  I.]  Collateral  Undertakings.  411 

of  that  question  involves  an  inquiry  into  the  principles, 
upon  which  the  action  is  sustained  at  common  law.     It 


after  the  defendant  has  actually  promised  the  plaintiff  to  pay  him  the 
f  money,  or  in  some  equivalent  form  recognized  the  plaintiff  as  his  creditor. 
Harris  v.  De  Bevoice,  2  Rolle,  440  (A.  D.  1624) ;  Williams  v.  Everett,  14 
East,  582  (1811)  ;  De  Bernales  v.  Fuller,  id.  in  note  to  p.  590;  Lilly  v.  Hays, 
6  Adolphus  and  Ellis,  54S,  1  Neviie  and  Perry,  26,  and  2  Harrison  and 
Wollaston,  338  (1836);  Moore  v.  Bushell,  27  Law  Journal,  N.  S.,  Exch., 
3  (1857).  The  last  vestiges  of  authority  which  modern  decisions  suffered 
Button  V.  Poole  to  retain,  were  swept  away  by  the  recent  case  of  Tweddle 
V.  Atkinson,  Executor,  etc.,  1  Best  and  Smith,  393,  (S.  C,  8  Jurist,  N.  S., 
332,  30  Law  Journal,  N.  S.,  Q.  B.,  205,  9  Weekly  Reporter,  781,  4  Law  Times, 
N.  S.,  408),  decided  in  the  Queen's  Bench,  A.  D.  1861.  There  the  declara- 
tion stated  in  substance,  that  in  consideration  of  an  intended  marriage 
between  the  plaintiff  and  the  daughter  of  William  Guy,  the  defendant's 
testator,  Mr.  Guy  verbally  promised  the  plaintiff  to  give  his  daughter  a  mar- 
riage portion,  and  the  plaintiff's  father  also  verbally  promised  to  give  the 
plaintiff  a  marriage  portion;  and  after  the  consummation  of  the  marriage, 
neither  of  the  said  verbal  agreements  having  been  performed,  the  plaintiff's 
father  and  Mr.  Guy,  as  a  mode  of  giving  effect  to  their  verbal  promises,  and 
each  acting  for  the  benefit  of  his  child,  and  for  the  purpose  of  providing  and 
procuring  the  other  to  provide  a  marriage  portion  for  his  child,  entered  into 
an  agreement  in  writing  with  each  other,  a  copy  of  which  was  set  out  in  the 
declaration;  being  a  mutual  promise,  on  the  part  of  each  of  the  contracting 
parties,  to  pay  to  the  plaintiff  a  certain  sum  of  money,  at  a  time  therein 
mentioned;  and  containing  further  a  stipulation,  that  the  plaintiff  might  sue 
the  parties  "for  the  aforesaid  sums  hereby  promised  and  specified."  The 
declaration  then  averred,  that  the  plaintiff  and  his  wife  afterwards  ratified 
and  assented  to  that  agreement;  and  concluded  with  the  necessary  formal 
allegations.     The  defendant  demurred  to  this  declaration,  and  the  plaintiff's 

counsel  cited  Dutton  v.  Poole,  Thomas  v. ,  and  the  two  cases  in  Bourne 

V.  Mason.  Wightman,  J.,  said:  "Some  of  the  old  decisions  appear  to  sup- 
port the  proposition,  that  a  stranger  to  the  consideration  of  a  contract  may 
maintain  an  action  upon  it,  if  he  stands  in  such  a  near  relationship  to  the 
party  from  whom  the  consideration  proceeds,  that  he  may  be  considered  a 
party  to  the  consideration.  The  strongest  of  these  cases  is  that  cited  in 
Bourne  v.  Mason,  in  which  it  was  held  that  the  daughter  of  a  physician 
might  maintain  assumpsit,  upon  a  promise  to  her  father,  to  give  her  a  sum 
of  money,  if  he  performed  a  certain  cure.  But  there  is  no  modern  case  in 
which  the  proposition  has  been  supported.  On  the  contrary,  it  is  now  estab- 
lished, that  no  stranger  to  the  consideration  can  take  advantage  of  a  contract, 
although  made  for  his  benefit."  Crompton,  J.,  and  Blackburn,  J.,  delivered 
opinions  to  the  same  effect;  so  there  was  judgment  for  the  defendant. 


412  Collateral  Undertakings.  [Cli.  xii. 

will  therefore  be  impossible  fully  to  examine  the  question 
arising  under  the  statute,  without  also  bestowing  con- 
siderable attention  upon  the  common  law  rule. 

§  388.  Let  us  therefore  inquire  whether  those  cases, 
which  affirm  that  the  creditor  may  maintain  the  action  at 
common  law,  advance  any  theory  for  that  purpose,  which 
in  any  way  affects  the  queston  arising  under  the  statute 
of  frauds.  It  has  been  sometimes  said  that  the  promise 
may  be  regarded  as  having  been  made  to  the  debtor,  in  the 
character  of  an  agent  of  the  creditor,  and  that  the  latter, 
by  bringing  the  action,  affirms  the  assumed  agency,  (c) 
If  the  creditor' s  action  rested  upon  that  idea,  there  would  be 
no  feature  to  distinguish  a  case  of  this  kind  from  one  where 
the  promise  was  made  to  him  directly,  without  any  partici- 
pation by  the  debtor ;  and  consequently  every  attempt  of 
the  creditor  to  maintain  an  action  thereon,  when  it  was 
verbal,  must  be  defeated  by  the  objection  arising  under 
the  statute.  And  again,  it  would  be  impossible  for  the 
debtor  to  mnintain  an  action  upon  the  promise,  under 
any  circumstances.  (cZ)  But  the  theory  of  an  agency  in 
the  debtor  has  not  been  so  generally  advanced  as  to  call 
for  an  elaborate  discussion ;  it  is  supposed  to  be  derived 
from  a  remark  in  one  of  the  English  cases,  referring  to  a 
supposed  agency  on  the  part  of  the  defendant  when  he 
has  received  money  for  the  use  of  the  plaintiff,  (e)  and  to 
be  entirely  inapplicable  where  the  liability  assumed  by 
the  promisor  was  such  as  to  create  a  simple  debt.(/) 

(c)  Per  Johnson,  C.  J.,  and  Denio,  J.,  in  Lawrence  v.  Fox,  20  New  York, 
268,  post,  §  412,  and  note;  Per  Hogeboom,  J.,  Seaman  v.  Hasbrouck,  35 
Barbour,  151,  in  note  to  §  412. 

(cZ)  All  this  is  very  clearly  shown  by  Robertson,  C.  J.,  in  Connor  v.  Wil- 
liams, 2  Robertson  (K  Y.),  46. 

(e)  Lilly  v.  Hays,  5  Adolphus  and  Ellis,  548. 

(/)  Professor  Parsons,  in  the  fifth  edition  of  his  work  on  Contracts 
(Volume  1,  page  468),  has  added  this  paragraph  to  the  observation,  con- 
tained in  the  earlier  editions,  that  the  prevailing  rule  with  us,  is  that 
the  party  benefited  may  sue:  "Indeed  it  has  been  held  that  such  a 
promise    is   to  be  deemed  made  to  the  third  party,   if  adopted    by  him, 


Art.  I.]  Collateral  Undertakings.  413 

§  389.  It  has  been  said  with  greater  show  of  authority 
that  the  express  promise  made  by  the  defendant  to  the 
debtor,  raises  also  an  implied  promise  in  favor  of  the 
creditor  (^);  but  it  is  believed  that  the  expression  is  used 
ill  the  sense  that  a  duty  or  obligation  is  created,  by  the 
actual  or  constructive  receipt  of  money  in  consideration 
of  the  promise  ;  which  enables  the  creditor  to  draw  to 
himself  the  fulfi^nent  of  the  latter,  and  to  insert  the  formal 
allegation  of  an  assumpsit  in  a  declaration  adapted  to  the 
facts  ;  rather  than  as  indicating  that  the  law  implies  a 
promise,  upon  wliicli  he  may  specially  declare  as  having 
been  made  to  himself.  No  precedent  of  such  a  declara- 
tion has  come  under  our  observation  ;  on  the  contrary  it 
has  been  held  that  in  pleading  the  promise,  it  should  be 
stated  to  have  been  made  to  the  debtor,  according  to  the 
fact.(^)  And  it  is  believed  that  the  theory  of  an  implied 
promise  is  an  unnecessary  excrescence  upon  the  doctrine, 
tending  to  increase  the  perplexity  in  which  the  whole 
subject  is  enveloped.  But  if  the  common  law  action  rests 
upon  this  ground,  it  is  clear  that  the  statute  does  not 
apply,  for  the  latter  includes  only  express  promises. (/) 

though  he  was  not  cognizant  of  it  when  made."  The  authorities  cited 
in  the  note  are  Lawrence  v.  Fox,  20  New  York,  2G8,  and  Steman  v. 
Harrison,  42  Pennsylvania,  49.  Doubtless  the  reference  to  Lawrence 
V.  Fox  is  intended  for  the  reasons  assigned  by  the  Cliief  Justice  and 
Denio,  J.,  for  concurring  with  the  majority.  The  case  in  42  Pennsyl- 
vania does  not  bear  out  the  observation.  It  holds  merely  that  a  prom- 
ise to  accept  a  bill  of  exchange  for  a  fixed  amount  is  equivalent  to  an 
acceptance,  not  only  as  to  the  drawer,  but  as  to  every  person  who  takes  the 
bill  on  the  faith  of  the  promise;  and  the  rule  in  the  case  of  an  ordinary  con- 
tract is  not  alluded  to  in  the  opinion. 

(g)  Per  Gray.  J.,  in  Lawrence  v.  Fox,  20  New  York,  2G8,  and  cases  cited 
by  him,  §  412;  Per  Bigelow,  J.,  in  Brewer  v.  Dyer,  61  Massachusetts 
(7  Cashing),  337.  note  to  §420,  Per  Shaw,  C.  J.,  Perry  v.  Swasey,  GG  Massa- 
chusetts (12  Gushing),  36;  Per  Robertson,  C.  J.,  Connor  v.  Williams,  2 
Robertson,  N.  Y.,  46. 

(/i)  Delaware,  etc.,  Company  v.  Westchester  County  Bank,  4  Denio,  97  ; 
Barker  v.  Bucklin,  2  Denio,  45  ;  Decker  v.  Shaffer,  3  Indiana,  187;  Mason  i. 
Hall,  30  Alabama,  599.  Contra,  per  Skinner,  J.,  in  Eddy  v.  Roberts,  17 
Illinois,  508.  Sf-e  remarks  upon  Curtis  v.  Brown,  59  Massachusetts  (5  Cush- 
ing),  488,  post,  §418,  419. 

(J.)  See  chapti  r  iv,  article  i. 


414  Collateral  Undertakings.  [Ch.  xn. 

§  390.  An  examination  of  the  cases  contained  in  the 
second  article  of  this  chapter,  will  suffice  to  show  that  the 
modern  authorities  sustaining  the  creditor' s  action,  agree 
in  holding,  that  where  no  trust  was  raised  by  the  acts  of 
the  parties,  the  right  of  the  creditor  to  sue  depends  upon 
the  presumption,  that  he  is  the  person  for  whose  benefit 
the  contract  between  his  debtor  and  the  defendant  was 
made.  And  although  there  is  not  absolute  uniformity 
among  them,  the  weight  of  authority  is  decidedly  to  the 
effect,  that  the  action  must  rest  upon  that  contract ;  and 
that  the  declaration  must  allege  that  it  was  made  between 
the  debtor  and  the  defendant ;  which  is  entirely  repugnant 
to  the  notion,  that  it  was  a  constructive  promise  to  the 
plaintiff,  either  by  reason  of  the  debtor  being  his  agent,  or 
for  any  other  cause.  Consequently  the  action  is  not 
founded  upon  the  idea  that  the  plaintiff  was,  or  at  any 
time  became  a  party  to  the  contract  either  in  fact,  or  by 
fiction  of  law ;  but  upon  the  ground  that  the  law  entitles 
him  to  acquire  a  privity,  with  respect  thereto,  by  reason 
of  his  interest.  These  propositions  are  very  distinctly 
stated  in  some  of  the  cases,  and  they  are  to  be  inferred 
from  all  those  which  carry  much  weight  of  authority.  It 
is  believed  that  a  collation  of  the  cases  will  also  result  in 
establishing  the  proposition,  that  from  the  time  when  the 
contract  is  entered  into,  the  right  of  the  promisee  therein 
to  release  or  enforce  it  is  suspended,  awaiting  the  action 
of  the  person  for  whose  benefit  it  was  presumptively 
made  ;  and  that  an  inchoate  right  to  enforce  it  vests  imme- 
diately in  the  creditor,  which  remains  in  abeyance,  until 
he  determines  his  election,  by  the  commencement  of  a 
suit  or  some  other  unequivocal  act;  but  reverts  to  the 
promisee,  if  renounced  by  him.  Some  of  the  cases  go 
much  further  ;  but  this  is  far  enough  for  our  purpose,  (y) 
It  results  inevitably  from  these  conclusions,  that  the  creditor 

{j)  According  to  the  decision  in  Warren  v.  Batchelder,  IG  New  Hamp* 
shire,  580,  and  apparently  also  as  a  consequence  of  the  decision  in  Bohanan 
V.  Pope,  42  Maine,  93,  an  election  to  enforce  the  promise  amounts  to  an 
extinguishment  of  the  original  debt. 


Art.  I.]  Collateral  Undertakings.  415 

was  not  in  any  sense  a  party  to  the  contract,  at  the  time 
when  it  was  made  ;  and  that,  if  the  privity  which  the  law 
raises  in  liis  favor  makes  him  a  quasi  party,  or  creates  an 
implied  promise  in  his  favor,  it  does  so  only  from  the 
time  when  his  election  to  enforce  it  was  determined. 

§  391.  If  these  propositions  state  truly  the  rules  of  law, 
to  be  deduced  from  the  authorities  sustaining  the  credit- 
or's  right  of  action,  it  would  seem  that  all  questions  aris- 
ing under  the  statute  of  frauds  are  completely  disposed 
of,  by  the  principle  that  the  statute  does  not  apply  to 
promises  made  to  the  debtor.  Every  additional  reason 
for  taking  this  class  of  cases  out  of  the  statute  is  suppr- 
fluous  ;  and  if  it  leads  to  doubt  or  confusion  its  introduc- 
tion is  mischievous. 

§  392.  But  this  principle,  if  indeed  it  solves  the  diffi- 
culty, has  been  overlooked,  in  the  discussions  which  have 
arisen,  respecting  the  application  of  the  statute  to  such 
promises.  This  was  quite  natural  in  the  earlier  cases, 
because  the  principle  itself  has  been  definitely  incorpor- 
ated into  the  law  but  recently ;  and  even  if  it  had  been 
established,  when  they  were  decided,  the  uncertainty  which 
long  existed,  with  respect  to  the  grounds  of  maintaining 
the  action,  would  have  prevented  the  recognition  of  its 
importance.  So  vague  are  the  reasons  assigned  in  the 
early  cases,  for  permitting  the  plaintiff  to  sue,  that  in  most 
of  them,  where,  in  addition  to  the  promise  to  the  debtor, 
a  subsequent  promise  was  made  to  the  creditor,  (either 
verbal  or  not  supported  by  any  distinct  consideration  ;)  we 
find  ourselves  at  a  loss  to  determine,  which  of  the  two 
promises  the  court  intended  to  sustain  or  condemn ;  and 
in  others  we  are  forced  to  the  conclusion  that  the  court 
has  intentionally  blended  the  promise  to  the  debtor,  with 
a  real  or  fictitious  promise  to  the  creditor,  in  an  attempt 
to  make  the  consideration  of  one  take  the  other  out  of  the 
statute.  The  prevalent  opinion  then  was  that  the  promise, 
(whatever  might  be  meant  by  that  term,)  was  not  \vithin 
the  statute,  because  it  came  within  Chancellor  Kent's 


416  Collateral  Undertakings.         [Ch.  xii, 

third  class,  (A*)  being  founded  npon  a  new  and  independ- 
ent consideration,  moving  between  the  debtor  and  the 
promisor.  Much  error  was  promulgated  under  that 
theory,  the  traces  of  which  appear  to  linger,  notwithstand- 
ing the  abandonment  in  modern  times  of  the  theory 
itself.(^) 

§  393.  For  although  most  of  the  modern  cases,  which 
sustain  the  creditor's  right  to  sue,  hold,  as  we  have 
already  stated,  either  expressly  or  by  necessary  conse- 
quence from  their  other  rulings,  that  he  was  neither 
actually,  constructively,  nor  by  retroactive  relation  a 
party  to  the  promise ;  they  continue  to  seek  in  the  con- 
sideration of  that  promise,  for  some  ground  on  which  to 
take  it  out  of  the  statute  of  frauds.  And  not  only  do 
they  fail  to  agree  with  respect  to  the  true  ground;  but 
occasionally,  after  some  peculiar  feature  of  the  considera- 
tion has  been  fixed  upon,  as  affording  a  satisfactory 
reason  for  taking  the  particular  promise  out  of  the  statute, 
a  corollary  is  deduced  that  all  cases  not  possessing  that 
feature  are  within  the  statute.  Hence  arise  new  and 
perplexing  questions  upon  this  branch  of  the  law,  with 
their  usual  concomitant,  discordance  of  judicial  authority. 

§  394.  This  will  disappear  with  the  recognition  of  the 
principle,  that  all  cases  of  this  class  are  without  the 
statute  of  frauds,  because  the  promise  was  not  made  to 
the  creditor.  The  only  answer  to  this  proposition,  is  that 
which  seemed  to  press  upon  the  mind  of  the  court,  in  a 
recent  case,  where  it  was  held  that  the  action  could  not  be 
maintained  upon  a  verbal  promise  ;(w)  namely,  that  the 
policy  of  the  act  requires,  that  a  creditor  should  not  be 
allowed  to  enforce  such  a  promise.  But  at  the  same  time 
it  was  conceded,  that  the  reasoning  had  no  application, 
when  the  debtor  was  suing ;  and  that  he  could  maintain 

(Jc)  Section  63. 
(  Z  )  Chapter  xvii. 

On)  Clapp  V.  Lawton,  31  Connecticut,  95,  fully  abstracted,  and  the  remarks 
of  the  court  upon  this  point  quoted  in  §§  421,  422. 


Art.  I.]  Collateral  Undertakings.  417 

the  action.  And  this  conclusion  apparently  neutralizes 
the  whole  argument.  For  the  statute  is  directed  against 
certain  promises,  and  not  against  their  enforcement  by 
particular  persons ;  and  it  would  aeem  that  the  province 
of  the  courts  ends,  in  this  respect,  with  the  decision  that 
promises  to  the  debtor  are  not  within  its  provisions. 
Such  is  the  precise  effect  of  the  cases  cited  in  the  last 
chapter,  {n)  And  the  exception  proposed  to  be  engrafted 
upon  the  general  rule,  which  they  establish,  will  fail  of 
accomplishing,  in  the  great  majority  of  instances,  any 
practically  useful  purpose.  For  although  the  decisions 
upon  the  common  law  question  have  thrown  much 
obscurity  around  the  debtor's  rights,  there  can  be  no 
doubt  that  he  is  entitled  to  enforce  the  promise,  in  every 
respect  in  which  the  creditor' s  ability  to  do  so  falls  short 
of  completeness.  The  proposed  exception  will  therefore 
affect  no  substantial  right,  but  only  turn  the  parties  in 
interest  over  to  another  action,  (o)  On  the  other  hand,  it 
is  believed  that  if  the  rule  be  maintained  in  its  integrity, 

(n)  It  is  true,  that  in  nearly  all  tlie  cases  cited  in  the  eleventh  chapter,  the 
promise  took  the  form  of  an  indemnity  to  the  debtor.  But  the  language  in 
which  the  rule  is  laid  down,  and  the  principles  upon  which  it  rests,  preclude 
the  idea  of  any  distinction  arising  out  of  the  form  of  the  promise.  It  would 
indeed  be  an  absurdity,  as  respects  the  rights  of  the  promisee,  under  the 
statute,  to  say  that  a  promise  to  indemnify  him  against  a  debt  is  governed 
by  one  rule,  and  a  promise  to  pay  the  debt  by  another.  And  in  some  of  the 
cases  the  promise  was  in  terms  to  pay  the  debt.  Preble  v.  Baldwin,  62 
Massachusetts  (C  Gushing),  549 ;  Fiske  v.  McGregory,  34  New  Hampshire,  414. 

(o)  See  Tibbetts  v.  Flanders,  18  New  Hampshire,  284  (A.  D.  184G).  There 
the  action  involved  a  question  of  title  to  a  table,  and  the  plaintiff  proved 
that  one  Balch  being  indebted  fo  one  R.  Tibbetts,  the  plaintiff's  father,  an 
agreement  was  made  in  the  presence  of  Balch,  R.  Tibbetts,  and  the  plaintiff, 
to  the  effect  that  the  plaintiff  should  take  the  table  and  some  other  furniture 
belonging  to  Balch,  and  guaranty  the  payment  of  Balch's  debt  to  R.  Tibbetts 
within  a  time  agreed  upon,  and  if  it  was  not  then  paid  by  Balch  the  furniture 
should  be  the  plaintiff's.  Various  objections  were  taken,  one  of  which  was 
that  this  verbal  agreement  was  not  valid.  But  the  court  said:  "The  plainiiff 
might,  without  any  writing,  upon  good  consideration,  make  a  valid  agreement 
with  Balch  to  pay  his  debt.  Whether  Richard  Tibbbets  could  or  could  not 
enforce  the  guaranty  is  not  material.  Balch  might  enforce  the  promise  to 
him." 

53 


418  Collateral  UisrDEETAKiiirGS.  fCii.  xii. 

the  conflict  of  authority  upon  the  question  whether  the 
statute  applies  may  be  reconciled,  {p) 

§  395.  Regarding  this  principle  as  controlling  the  appli- 
cation of  the  statute,  we  observe  that  the  question  whether 
a  creditor  can  enforce  the  promise  to  the  debtor  is  purely 
a  common  law  question,  whatever  may  have  been  the  evi- 
dence of  the  promise,  and  by  whatsoever  consideration  it 
may  have  been  supported.  And  for  all  purposes  con- 
nected with  the  application  of  the  statute,  it  is  immaterial 
whether,  after  the  consideration  passed  from,  and  the 
promise  was  made  to  the  debtor,  the  promisor  repeated 
his  verbal  promise  to  the  creditor,  either  with  or  without 
the  intervention  of  a  new  consideration ;  unless  the  new 
transaction  was  of  a  character  to  take  the  case  out  of  the 
statute,  without  reference  to  the  original  transaction. 
But  where  the  original  agreement  was  one  to  which  the 
creditor  was  a  party ;  that  is  to  say,  where  he,  together 
with  the  debtor  and  the  new  promisor,  participated  in  an 
agreement,  whereby  the  latter  undertook  with  the  creditor, 
to  pay  him  the  debt ;  although,  if  the  consideration  was 
furnished  by  the  debtor,  the  common  law  question  is  in 
substance  the  same,  that  arising  under  the  statute  of 
frauds  is  essentially  different.  For  then  the  debtor's 
presence  and  participation  in  the  contract  are  entirely 
immaterial,  as  far  as  the  application  of  the  statute  is 
involved ;  and  the  promise,  having  been  made  to  the 
creditor,  must,  if  verbal,  stand  or  tall  by  the  same  rules 
which  govern  other  verbal  promises  to  pay  a  debt  due  by 
another  to  the  promisee.  We  haye  therefore  severed  from 
this  class  of  cases,  those  presenting  the  feature  of  a  tripar- 

(p)  In  Clapp  V.  Lawton  the  suggestion  to  which  we  have  referred,  wsa 
made  incidentally  and  disposed  of  without  much  consideration.  Of  the  other 
cases  which  assert  that  the  statute  applies  to  such  an  action,  Shoemaker  v. 
King,  40  Pennsylvania,  107,  was  decided  upon  the  idea  that  the  creditor's 
action  depended  upon  an  implied  promise  to  him ;  and  in  Curtis  v.  Brown, 
59  Massachusetts  (5  Gushing),  488,  the  proposition  referred  to  was  not  sug- 
gested, nor  could  it  properly  have  influenced  the  decision,  as  the  pleadings 
stood. 


Art.  I.]  Collateral  Undertakings.  419 

tite  agreement,  which  have  been  generally,  altliongh  erro- 
neously, confounded  with  those  where  the  debtoi-  and  the 
promisor  were  the  only  parties  to  the  contract.  They  con- 
sist principally  of  a  class  where  the  consideration  was  a 
fund  placed  in  the  promisor' s  hands  by  the  debtor ;  which 
are  fully  examined  in  a  subsequent  chapter,  under  the 
seventh  TVile.{q) 

§  396.  With  these  preliminary  remarks,  we  proceed  to  the 
examination  of  the  cases,  where  the  debtor  and  the  promisor 
were  the  only  parties  to  the  contract ;  confining  ourselves 
in  the  text,  to  those  wlojere  the  application  of  the  statute  of 
frauds  formed  the  ground  of  the  decision  ;  except  in  a  few 
instances,  where  the  facts  involved  such  an  adjudication, 
although  the  question  was  not  expressly  passed  upon ; 
or  the  ground  of  the  decision,  upon  the  common  law 
question,  has  an  important  bearing  upon  that  arising 
under  the  statute.  For  obvious  reasons  we  shall  be  com- 
pelled to  select  certain  cases  as  types  of  the  class  to  which 
they  belong.  Others  will  be  cited  in  the  notes,  where  also 
will  be  found  the  cases  involving  only  the  common  law 
question ;  the  citation  occasionally  extending  itself  into 
an  abstract  of  the  case,  where  the  particular  point  decided 
bears  upon  some  of  the  numerous  and  perplexing  ques- 
tions, which  incidentally  arise  from  the  prevalent  Ameri- 
can doctrine,  summed  up  in  the  expression  "that  a 
promise  made  to  one  for  the  benefit  of  another,  he  for 
whose  benefit  it  is  made  may  bring  an  action  for  its 
breach."  (r) 

(q)  Chapter  fifteenth,  article  third.  There  are  nevertheless  a  few  cases 
oiled  in  the  succeeding  articles,  where  the  agreementwas  made  between  the 
three;  but  as  the  facts  did  not  call  for  the  application  of  any  rule  which 
would  take  them  out  of  the  statute,  as  promises  made  to  the  creditor,  they 
are  left  with  the  others,  where  the  promise  was  made  to  the  debtor. 

(r)  Gray,  J.,  in  Lawrence  v.  Tox,  20  New  York,  2G8,  says  that  this  prin- 
ciple "concisely  states  the  case  in  hand."  (p.  274.)  But  although  the 
embarrassing  questions,  referred  to  in  the  text,  mostly  relate  to  the  rights 
of  the  party  who  is  summarily  ousted  by  this  doctrine,  from  the  control  of 
his  own  contract,  it  is  not  always  easy  to  ascertain  the  principle  upon 
which  it  is  determined,  whether  a  particular  person  is  deemed  to  be  the 


420  Collateral  Undertakings.         [Ch.  xii. 

ARTICLE  11. 

American  oases  holding  that  the  statute  does  not  apply  to  the  actioni 

§  397.  In  Maine,  the  rule  that  neither  the  common  law 
nor  the  statute  of  frauds  interposes  any  obstacle  to  the 
creditor' s  right  to  recover,  upon  the  defendant' s  promise 
to  the  debtor  that  he  will  pay  the  debt,  has  been  settled 
by  a  series  of  decisions,  commencing  in  1827  with  Dear- 
horn  V.  Parks,  5  Greenleaf,  81.  There  the  plaintiff  sued 
as  treasurer  of  the  Monmouth  academy,  for  money  had  and 
received  by  the  defendant  to  the  use  of  the  academy ;  and 
it  appeared  that  one  Heald  had  purchased  land  from  the 
academy,  and  had  given  his  notes  for  the  purchase  money ; 
and  that  before  the  notes  became  payable,  he  sold  the 
land  to  the  defendant,  who  retained  enough  of  the  consid- 
eration money  to  pay  the  notes,  and  promised  Heald  to 
pay  them.  Afterwards,  Heald  having  died,  the  defendant 
said  that  he  had  paid  him  in  another  way.     There  was  no 

one  for  whose  benefit  the  contract  was  made,  so  as  to  entitle  him  thus  to 
draw  to  himself  the  exclusive  right  to  sue  for  its  breach.  It  seems  to  be 
generally  settled  that  where  the  contract  is  to  pa}'  a  debt,  the  creditor  is  pre- 
sumed to  be  the  person  intended  to  be  benefited ;  although,  as  a  matter  of 
fact,  it  very  rarely  happens  that  his  interests  had  any  influence  on  the  mind 
of  the  parties,  their  purpose  being  generally  to  take  care  of  the  debtor 
merely.  And  the  presumption  has  been  asserted  in  words  so  strong,  that  it 
is  not  probable  that  the  courts  would  listen  to  evidence  tending  to  overthrow 
it.  In  Missouri  alone  has  there  been  any  attempt  to  ascertain,  whether  the 
parties  really  had  the  benefit  of  the  creditor  in  view;  and  this  the  court 
seeks  to  discover,  not  from  parol  evidence,  but  from  the  contents  of  the 
instrument  itself.  (See  §  417.)  It  has  been  held,  however,  that  a  surety 
for  the  promisee  cannot  avail  himself  of  the  promise.  Thus  in  Hofiman  v. 
Schwaebe,  33  Barbour  (N.  Y.),  194,  A.  D.  1860,  the  plaintifiF  was  surety  for 
one  Miller,  on  two  promissory  notes,  given  by  Miller  upon  the  purchase  of  a 
contract  for  land  ;  and  before  the  maturity  of  the  notes,  Miller  assigned  the 
contract  to  the  defendant,  upon  his  verbal  agreement  to  pay  the  notes.  This 
he  neglected  to  do,  and  the  plaintiff  was  compelled  to  pay  them ;  whereupon 
he  brought  this  action  to  recover  the  amount  paid  by  him.  It  was  held  by 
the  New  York  Supreme  Court,  that  although  the  promise  was  valid,  and 
not  within  the  statute  of  frauds,  the  plaintiff  could  not  recover  upon  it; 
because  he  was  not  a  party  to  the  contract,  nor  was  it  made  expressly  for 
his  benefit.     See  also  Hicock  v.  McKay,  78  Massachusetts  (12  Gray),  218. 


Art.  II.]  Collateral  Undertakings.  421 

proof  of  any  promise  to  the  plaintiff,  or  to  any  other  per- 
son in  behalf  of  the  academy.  A  verdict  having  been 
found  for  the  plaintiff,  subject  to  the  opinion  of  the  court, 
it  was  held  that  the  promise  was  not  within  the  statute 
of  frauds,  because  it  was  merely  to  pay  a  debt  of  the 
promisor  ;  and  also  that  the  plaintiff  could  sue  upon  the 
promise,  notwithstanding  the  objection  of  want  of  privity. 

§  398.  The  case  of  Rowe  v.  Whittier,  21  Maine,  646, 
decided  A.  D.  1842,  recognizes  the  same  rule ;  but  the  court 
refused  to  sustain  the  action,  apparently  because  the 
promise  was  not  made  to  the  debtor,  but  to  the  plaintiff; 
although  the  opinion  is  not  very  clear,  and  it  asserts  one 
proposition  which  is  not  law.  There  the  defendant  had 
proposed  to  one  Patten  to  settle  a  lawsuit  pending  in 
favor  of  Patten,  against  him,  by  giving  to  Patten, 
security  for  the  debt,  to  which  Patten  assented,  provided 
the  defendant  would  pay  his  expenses  ;  on  the  defendant 
asking  what  would  be  the  amount  of  the  expenses,  the 
plaintiff,  who  was  the  attorney  for  Patten  in  the  suit, 
made  out  his  bill  to  Patten ;  and  the  defendant  in  the 
presence  of  Patten,  then  promised  the  plaintiff  to  pay  it, 
and  the  plaintiff  answered  that  that  would  be  satisfactory, 
whereupon  the  security  was  given,  and  the  suit  discon- 
tinued. The  bill  was  for  taxable  costs  and  commissions  ; 
the  defendant  had  paid  the  costs ;  and  this  suit  was  to 
recover  the  commissions.  It  was  held  that  the  plaintiff 
could  not  recover.  The  opinion  stated  that  if  the  defend- 
ant had  been  under  any  liability  to  Patten  for  the  com- 
missions, the  plaintiff  might  have  recovered  upon  the 
promise  within  the  principle  of  Dearborn  v.  Parks  ;  but 
Patten  was  liable  to  the  plaintiff  therefor,  and  he  could 
have  recovered  against  the  defendant  only  the  taxable  costs, 
if  the  suit  had  proceeded  to  judgment ;  consequently  as  to 
the  commissions  the  defendant' s  promise  was  without  con- 
sideration. It  proceeds  to  say  that  even  if  the  plaintiff 
had  discharged  Patten  in  consideration  of  the  defendant's 
promise,  the  latter  would  not  have  been  obligatory  under 
the  statute  of  frauds,  without  a  memorandum  in  writing. 


422  Collateral  Undertakings.  [Ch.  xii. 

§  399.  In  Todd  v.  Tobey,  29  Maine,  219,  A.  D.  1848,  the 
plaintiff,  with  R.  M.  T.  and  others,  had  jointly  guarantied 
the  payment  by  one  Haycock  of  a  bill  of  goods  purchased 
from  one  Hale ;  and  the  defendant  had  afterwards  pur- 
chased Haycock' s  stock  of  goods,  and  agreed  with  him  to 
pay  Hale.  Then  Hale  called  upon  the  guarantors  for 
payment,  and  they  referred  him  to  the  defendant,  who 
verbally  promised  R.  M.  T.  to  settle  the  demand.  He 
failed  to  do  so ;  and  the  plaintiff  paid  his  proportion  of 
the  amount,  and  the  like  sum  for  R.  M.  T.  ;  after  which  the 
defendant  again  promised  R.  M.  T.  to  pay  the  demand. 
Still  later  a  person  employed  by  the  defendant  to  settle 
his  accounts  with  the  plaintiff,  allowed  the  amount  so 
paid  by  the  plaintiff  for  his  proportion,  as  an  item  in  his 
favor  in  certain  accounts  between  the  parties ;  leaving  a 
balance  due  to  the  plaintiff,  to  recover  which  this  action 
was  brought ;  whereas  if  that  sum  had  not  been  allowed 
there  would  have  been  a  balance  due  to  the  defendant. 
The  settlement  of  the  account  was  in  writing,  the  agent 
having  signed  the  defendant's  name  at  the  foot  of  a 
statement  thereof.  The  defendant  having  been  shown  by 
the  agent  a  copy  of  this  statement  assented  to  it.  There 
was  no  evidence  of  any  direct  promise  by  the  defendant 
to  the  plaintiff,  except  what  might  be  inferred  from  these 
facts.  The  case  came  before  the  court  upon  a  statement 
of  facts,  upon  which  judgment  was  ordered  for  the  plaintiff. 
The  court  in  their  opinion  refer  to  the  settlement  of  the 
accounts  between  the  parties ;  but  place  their  decision 
distinctly  upon  the  ground  that  the  defendant's  promise 
to  Haycock  was  not  within  the  statute  of  frauds,  because 
it  was  upon  a  new  consideration  moving  between  them, 
and  that  the  person  for  whose  benefit  it  was  made  would 
be  entitled  to  enforce  it.  That  person  was  Hale ;  and  he 
had  two  remedies  besides  the  liability  of  Haycock; 
namely,  one  against  the  defendant,  and  one  against  the 
plaintiff  and  his  fellow  guarantors.  He  availed  himself 
of  the  latter.  After  the  guarantors  had  paid  the  demand, 
Haycock  would  be  liable  to  them ;  and  if  he  had  paid 
them,  he  would  have  had  a  remedy  against  the  defendant. 


Art.  II.]  Collateral  Undertakings.  423 

*'The  law  applied  to  tlie  facts  admitted,  authorizes  tliem 
to  reach  this  object  directly,  instead  of  being  obliged  to 
resort  to  the  circuity  of  action  supposed." (o^) 

§  400.  In  New  Hampshire  a  ruling  has  been  adopted, 
without  special  reference  to  the  question  arising  under  the 
statute  of  frauds,  which,  if  folio  wed  elsewhere,  will  not  only 

(a)  Here  the  defendant's  promise,  through  his  agent,  to  the  plaintiff,  appears 
to  have  been  resorted  to  in  support  of  the  action ;  but  only  to  avoid  a 
technical  objection  to  maintaining  it.  The  validity  of  the  transaction  under 
the  statute  of  frauds  was  made  to  depend  upon  the  circumstances  attending 
the  transaction  between  the  defendant  and  Haycock.  The  question  respect- 
ing the  application  of  the  statute,  in  an  action  by  a  creditor  to  recover  upon  a 
contract  between  his  debtor  and  i,  stranger,  to  pay  the  debt,  also  arose  and  was 
decided  the  same  way,  in  the  more  recent  cases  of  Maxwell  v.  Haynes,  41 
Maine,  559,  A.  D.  1856,  and  Perkins  v.  Hitchcock,  49  Maine,  468,  decided 
A.  D.  1860,  but  they  present  no  features  requiring  special  comment.  In  the 
following  cases  no  question  arose  except  as  to  the  right  of  the  person  to  be 
benefited  by  the  contract  to  enforce  it  at  common  law.  His  right  was 
affirmed  in  Hinkley  v.  Fowler,  15  Maine,  285;  Warren  Academy  v.  Starretl, 
id.,  443 ;  and  Motley  v.  Manuf.  Ins.  Co.,  29  Maine,  337.  And  conversely  it 
was  held  in  Tewksbury  v.  Hayes,  41  Maine,  123,  that  the  plaintiff  could  not 
maintain  an  action  upon  a  contract  in  writing,  reciting  that  in  consideration 
of  a  conveyance  by  him  to  the  defendant  of  the  plaintiff's  interest  iii  a  mill, 
the  defendant  agreed  to  pay  to  Cornelia  E.  Blake  the  amount  of  her  interest 
in  the  mill;  because  the  contract  contained  no  promise  to  the  plaintiff.  The 
general  common  law  rule,  deducible  from  the  cases  above  mentioned  and 
those  cited  in  the  text,  was  reaffirmed  in  Bohanan  v.  Pope,  42  Maine,  93, 
A.  D.  1856;  where  it  was  also  held,  that  if  the  person  to  be  benefited  by  a 
contract  between  two  others,  is  also  a  debtor  of  the  party  from  whom  the 
consideration  flows,  and  if  he  should  "disregard  it  and  seek  his  remedy 
directly  against  the  party  with  whom  his  contract  primarily  exists,"  then 
"such  party  may  recover  against  the  party  contracting  with  him,  in  the  same 
manner,  as  if  the  stipulation  in  the  contract  had  been  made  dircctl}"-  with 
him,  and  not  for  the  benefit  of  a  third  person,"  and  that  an  election  of  one 
remedy  implies  the  abandonment  of  the  other.  And  it  appearing  that  the 
plaintiff  had  been  hired  by  one  Whitney  to  do  certain  work;  that  the  defend- 
ants had  previously  made  a  contract  with  Whitney,  whereby  they  agreed  to 
pay  his  men ;  that  this  contract  was  shown  to  the  plaintiff  when  he  was  hired ; 
and  that  after  the  plaintiff  had  done  the  work,  Whitney  gave  him  an  order 
on  the  defendants,  which  they  refused  to  pay;  whereupon  the  plaintiff  sued 
and  recovered  judgment  atrainst  Whitney;  it  was  held  that  he  could  not 
maintain  an  action  against  the  defendants. 


424  Collateral  Undertakings.  [Cli.  xii. 

remove  all  doubt  as  to  the  application  of  the  statute,  and 
the  true  rule  at  common  law,  but  will  also  completely  turn 
the  current  of  the  decisions  upon  various  questions  which 
are  now  the  subject  of  much  debate.  We  refer  to  the 
case  of  Warren  v.  BatcJielder,  16  New  Hampshire,  580, 
decided  in  1845,  but  not  published  till  1863.  The  action 
was  for  money  had  and  received.  The  defendant  had 
been  a  debtor  to  one  Dow  upon  a  promissory  note  ;  and 
the  plaintiff  had  commenced  a  suit  against  Dow,  in  which 
he  had  summoned  the  defendant  by  a  trustee  process  as 
Dow's  debtor.  Pending  the  suit  Dow  called  on  the 
defendant  for  payment  of  his  debt ;  but  the  defendant 
objected  to  paying,  on  account  of  the  trustee  process. 
Thereupon  Dow  and  the  defendant  agreed  that  the  latter 
should  pay  the  former  the  amount  of  the  debt,  less  a  sum 
equal  to  the  plaintiff' s  demand  against  Dow  and  the  costs, 
which  sum  the  defendant  should  pay  to  the  plaintiff; 
and  the  balance  was  paid  to  Dow,  who  surrendered  the 
defendant's  note.  The  plaintiff  proceeded  with  his  suit 
against  Dow,  and  finally  recovered  a  judgment  therein  ; 
but  before  judgment  the  trustee  was  discharged.  Nearly 
four  years  afterwards,  the  plaintiff  demanded  from  the 
defendant  payment  of  the  money  left  in  his  hands  by 
Dow,  and  upon  his  refusal  commenced  this  action. 

§  401.  The  cause  was  first  heard  in  1844,  and  the  decis- 
ion thereon  is  reported  in  15  New  Hampshire,  129.  Upon 
that  occasion,  a  verdict  for  the  plaintiff  was  set  aside  on 
exceptions  ;  an  opinion  having  been  delivered  by  Gilchrist, 
J.,  concluding,  after  an  examination  of  the  authorities, 
that  the  plaintiff  could  not  recover  because  he  was  a 
stranger  to  the  consideration.  This  decision  was  generally 
supposed  to  have  settled  the  rule  in  that  state,  until  the 
publication  of  the  16th  New  Hampshire,  nineteen  years 
afterwards.  From  the  latter  report  it  appears,  that  upon 
a  new  trial  of  the  cause,  the  plaintiff  had  a  verdict,  subject 
to  the  opinion  of  the  court ;  there  being  no  material  differ- 
ence between  the  evidence  upon  the  two  trials,  except  that 
the  report  of  the  first  trial  states  that  the  plaintiff  issued 


Art.  II.]  Collateral  Undertakings.  426 

an  execution  upon  his  judgment.  But  upon  the  second 
verdict  the  court  rendered  judgment  for  the  plaintiff. 
Upon  the  latttrT  occasion,  an  (^ahorate  opinion  was  deliv- 
ered by  Woods,  J.,  wherein  he  insisted  that  when  a  con- 
tract has  been  made  between  a  debtor  and  a  stranger, 
providing  for  the  payment  of  the  debt  by  the  latter,  the 
creditor  may  make  himself  a  party  to  it,  and  entitle  him- 
self to  recover  upon  it,  by  a  subsequent  ratilication  ;  that 
such  a  ratification  is  accomplished  by  a  demand  of  fulfil- 
ment, made  upon  the  person  who  had  und<*rtaken  to  pay 
the  debt,  and  the  commencement  of  an  action  against  him, 
in  case'of  his  refusal ;  and  that  such  a  demand,  followed 
by  the  commencement  of  an  action,  amounts  in  law  to  an 
extinguishment  of  the  original  debt,  {b)    An  extended  com- 


(/;)  The  learned  judge  commenced  by  assenting  to  the  broad  proposition, 
that  the  person  to  be  benefited  might  maintain  the  action;  and  after  exam- 
ining anew  the  authorities,  he  said,  that  the  pUiintiff,  in  order  to  recover, 
must  be  a  party  to  the  arrangement  between  Dow  and  the  defendant,  either 
by  an  original  participation  in  it,  or  by  a  subsequent  assent  to  it,  and  adop- 
tion of  its  provisions.  That  it  was  well  settled,  that  unless  the  demand  of 
the  plaintiff  against  Dow  was  to  be  considered  as  cancelled  by  the  arrangement, 
his  assent  to  it  was  not  so  perfect  and  unqualified  as  to  entitle  iiim  to  tiie  bene- 
fit which  it  was  intended  to  provide  for  him.  But  that  such  an  assent,  and  an 
acceptance  of  the  provision  so  made  for  him,  whether  cotemporaneous  with, 
or  subsequent  to,  the  acts  of  the  other  parties,  must  operate  to  discharge  the 
debt,  unless  there  should  be  cause  for  holding  that  the  provision  was  merely 
collateral;  and  no  such  cause  existed  in  the  present  case.  And  it  was  stated 
to  be  the  unanimous  opinion  of  the  court,  that  in  such  cases  of  a  deposit  by 
a  debtor  with  a  third  person  for  the  payment  of  his  debt,  upon  the  promise 
of  the  depositary  to  pay  the  same  to  the  creditor,  together  with  the  assent 
of  the  creditor  to  the  arrangement,  and  his  acceptance  of  the  provision  thus 
made  for  him,  his  original  demand  must  be  deemed  to  be  discharged,  and  a 
new  debt  and  a  new  debtor  substituted.  The  next  question  was,  whether 
the  evidence  showed  such  an  assent,  so  that  a  privity  Between  the  parties 
became  established.  Upon  this  point  the  learned  judge  said,  that  something 
more  than  the  comraencement  of  a  suit  was  necessary  to  indicate  the  assent, 
and  something  anterior  to  that  measure  was  needful  to  establish  the  necessary 
privity.  A  mere  demand,  he  thought,  was  insufficient  for  the  purpose; 
"but,"  he  concluded,  "a  demand  and  refusal,  followed  by  a  suit,  or  any 
other  equally  plain  demonstration  of  a  purpose  to  adopt  and  to  insist  upon 
the  new  provision,  is  such  evidence  of  an  election  of  it,  in  preference  to  the 
54 


426  Collatp:kal  Undertakings.  [Ch.  xii. 

ment  upon  this  opinion  would  be  out  of  place  here.  It 
suffices  to  say  that  its  doctrines  are  so  novel,  not  to  say 
revolutionary,  that  it  cannot  be  regarded  as  a  precedent 
elsewhere,  until  they  shall  have  received  the  sanction  of 
other  adjudications. 

§  402.  It  would  seem  that  the  courts  of  Vermont  sustain 
the  creditor's  remedy,  at  common  law  and  under  the 
statute,  according  to  the  case  of  Wait  v.  Waifs  Executor^ 
28  Vermont,  350,  decided  in  1856  ;  although  the  distinction 
between  a  promise  to  the  debtor  and  one  to  the  creditor 
does  not  appear  to  have  been  clearly  taken.  There  the 
plaintiff  appealed  from  the  decision  of  the  probate  court, 
disallowing  a  claim  in  his  favor,  against  the  estate  of 
Joseph  H.  Wait,  and  the  auditor  reported  the  following 
facts:  The  plaintiff  had  erected  a  barn  upon  premises 
then  owned  by  one  Joseph  Wait,  under  his  assurance 
that  the  premises  should  be  conveyed  to  the  plaintiff,  or, 
if  they  were  conveyed  to  another,  that  the  grantee  should 
pay  the  plaintiff  for  erecting  the  barn.  Afterwards  the 
premises  were  conveyed  by  Joseph  Wait  to  Joseph  H. 
Wait,  the  deceased ;  and  the  latter,  soon  after  the  convey- 
ance was  made,  informed  the  plaintiff  that  he  was  to  pay 
him  for  building  the  barn  and  that  he  would  do  so  as 
soon  as  he  could ;  and  on  several  other  occasions  he 
recognized  the  debt  and  promised  to  pay  it.  The  defence 
was  that  "this  promise  to  pay  the  plaintiff  his  claim" 


original  debt,  as  to  conclude  the  party,  and  to  bar  him  from  the  pursuit  of  a 
collateral  remedy,  against  the  terms  and  intentions  of  the  parties  who  have 
furnished  the  new.  A  direct  and  explicit  assent,  in  terms,  to  accept  the 
provision  as  payment,  would  clearly,  upon  the  authorityof  Heaton  v.  Angler, 
(see  ante,  §  332,)  discharge  the  antecedent  debt.  Whether  the  assent  be 
contemporaneous  or  not.  seems  immaterial.  If  the  assent  appear,  not  by 
the  clear  and  unambiguous  language  of  the  party  creditor,  but  by  his  unam- 
biguous act,  it  is  equally  availing  as  an  election  between  two  remedies,  of 
which  he  is  entitled  to  only  one.  The  bringing  of  an  action,  following  a 
demand,  is  an  act  that  may  well  be  regarded  as  an  election  of  remedies,  and 
should  be  attended  by  the  proper  consequences  of  an  election  in  excluding 
the  party  from  the  alternate  and  collateral  remedy." 


Art.  II.]  Collateral  Undertakings.  427 

was  void  by  the  statute  of  frauds.  But  the  court  held 
that  the  fair  construction  of  the  auditor's  rei)ortwas,  that 
payment  of  the  debt  to  the  plaintiff,  was  part  of  tlie  con- 
sideration of  the  conveyance  to  the  deceased ;  and,  as 
matter  of  law,  that  where  property  had  been  placed  in  the 
hands  of  the  promisor  by  the  debtor  for  the  purpose  of 
paying  a  debt,  the  promise  was  out  of  the  statute.  The 
decision  of  the  probate  court  was  therefore  reversed. 

§  403.  In  the  opinion  of  the  Supreme  Court  in  this  case, 
it  was  said  that  the  rule  that  a  promise  to  pay  the  debt  is 
collateral,  as  long  as  the  original  liability  continues,  has 
no  application  "to  cases  where  the  original  debtor  places 
property  of  any  kind  in  the  hands  of  a  third  person,  and 
that  person  promises  to  pay  the  claim  of  a  particular 
creditor.  The  promise  in  such  case  is  an  original  promise, 
and  the  property  placed  in  his  hands  is  its  consideration." 
This  remark  seems  to  indicate  that  the  court  had  in 
mind  a  tripartite  agreement,  of  which  there  was  no  evi- 
dence;  and  in  Fullam  v.  Adams ^  37  Vermont,  391,  (c)  the 
case  of  Wait  v.  Wait  was  cited,  as  holding  that  the  prom- 
ise to  the  plaintiff  was  not  within  the  statute ;  and  as 
showing  that  where  the  promisor  holds  a  fund  of  the 
debtor  for  the  purpose  of  paying  the  debt,  so  that  as 
between  him  and  the  debtor  he  is  primarily  liable  for 
it,  his  promise  to  the  creditor  is  not  witliin  the  statute, 
because  it  is  substantially  to  pay  his  own  debt. 

§  404.  In  the  State  of  New  York  the  right  of  the  person 
for  whose  benefit  a  contract  was  made,  to  sue  for  its  breach, 
and,  where  he  is  a  creditor  of  the  promisee,  to  maintain 
the  action  without  reference  to  the  statute  of  frauds,  has, 
after  considerable  conflict  of  authority,  been  cf)nclusively 
settled  by  a  number  of  modern  decisions  ;  which  generally 
take  the  correct  distinction  between  the  original  promise 
to  the  debtor,  and  a  subsequent  promise  to  the  creditor. 
In  the  earliest.  Gold  and  Sill  v.   Phillips,  10  Johnson, 

(c)  Cited  at  length  in  chapter  xvii. 


428  Collateral  Undertakings.  [Cli.  xii. 

412,  decided  A.  D.  1813,  in  the  Supreme  Court,  the  action 
was  really  founded  upon  a  promise  to  the  debtor,  but 
there  was  a  subsequent  promise  to  the  creditor,  upon 
which  the  declaration  counted ;  and  the  case  furnishes  an 
instance  of  that  confusion  between  the  two  promises, 
referred  to  in  the  first  article  of  this  chapter.  (cZ)  The 
report  says  that  the  action  was  brought  by  the  plaintiffs 
"to  recover  their  fees  as  attorneys  and  counsellors." 
The  proof  was  that  one  Wodd  had  conveyed  a  farm  to  the 
defendants,  for  a  specified  consideration ;  which  was  se- 
cured to  be  paid  by  a  bond  of  the  defendants,  and  a  mort- 
gage on  the  premises.  By  the  terms  of  the  bond,  part  of  the 
consideration  was  to  be  paid  in  money  to  Wood  ;  and  the 
remainder  was  made  up  of  debts  due  by  Wood,  mentioned 
in  the  bond,  which  the  defendants  assumed  to  pay,  and 
to  indemnify  Wood  against  the  same ;  among  others  the 
debt  due  to  the  plaintiffs.  Subsequently  the  defendants 
conveyed  the  farm  to  another  person,  who  agreed  with 
them  to  pay  the  debts  of  Wood  which  they  had  assumed  ; 
and  thereupon  the  defendants'  bond  was  cancelled.  On 
the  day  when  the  conveyance  from  Wood  to  the  defend- 
ants was  made,  they  wrote  a  letter  to  the  plaintiffs,  saying 
that  by  an  arrangement  between  them  and  Wood,  they 
were  accountable  to  the  plaintiffs  for  the  balance  due  them 
by  Wood.  The  letter  was  not  however  sufficient,  as  a 
memorandum  of  the  agreement,  to  satisfy  the  statute. 
The  plaintiffs  having  sued  to  recover  from  the  defendants 
the  debt  due  to  them  by  Wood,  a  verdict  was  taken  for 
them,  subject  to  the  opinion  of  the  court. 

§  405.  The  court  said  that  the  promise  of  the  defendants 
was  not  within  the  statute  of  frauds,  because  it  "was 
founded  on  a  new  and  distinct  consideration. ' '  That ' '  the 
defendants  made  the  promise,  in  consideration  of  a  sale  of 
lands  made  to  them  by  Wood ;  and  they  assumed  to  pay 
the  debt  of  the  plaintiffs,  as  being,  by  arrangement  with 
Wood,  part  payment  of  the  purchase  money.     Here  was  a 

(d)  Section  392. 


AH.  II.]  Collateral  Undertakings.  429 

valid  assumption  of  tlie  debt  of  Wood."  Judgment  was 
accordingly  rendered  on  the  verdict  for  the  plaintiffs.  But 
there  was  another  suit  against  the-same  defendants,  in  favor 
of  Gold  alone,  to  recover  fees  due  from  Wood  as  solicitor  in 
chancery  ;  and  the  case  shows  that  there  was  evidence,  from 
which  the  jury  could  have  inferred,  that  Gold's  debt  was 
also  included  in  the  bond.  But  the  Court  directed  judg- 
ment for  the  defendants  in  that  suit ;  on  the  ground  that 
an  inquiry  as  to  the  extent  of  the  promise,  showed  that 
"  iY  was  made  jointly  to  Gold  and  Sill."  This  clearly 
refers  to  the  letter  ;  so  that  the  case  is  an  authority  against 
the  doctrine  that  an  action  will  lie  upon  a  promise  to  the 
debtor,  unless  it  proceeded  upon  the  ground  that  the 
promise  was  contained  in  a  sealed  instrument. 

§  406.  This  case  was  followed  by  several  others  involv- 
ing the  application  of  the  statute,  where  the  creditor,  the 
debtor,  and  the  new  promisor  were  all  parties  to  an  agree- 
ment, whereby  the  latter  undertook  with  the  creditor  to 
pay  him  the  debt,  in  consideration  of  a  fund  placed  in  his 
hands  by  the  debtor  ;(e)  and  the  first  case  where  the  Su- 
preme Court  had  occasion  to  determine  the  effect  of  a 
promise  to  the  debtor,  contained  in  a  contract  to  which 
the  creditor  was  not  a  party,  was  Barlcer  v.  Buckling  2 
Denio,  45,  A.  D.  1846.  There  the  action  was  to  recover 
money  due  to  the  plaintiflE*  from  Francis  B.  Bucklin ; 
and  the  report  states  that  the  declaration  averred  "tliat 
the  defendant,  in  consideration  of  a  pak  of  horses  de- 
livered to  him  by  Francis,  and  of  forbearance  by  the  plaint- 
iff to  prosecute  Francis  for  the  debt,  at  tlie  defendant's 
request,  had  promised  the  plaintiff  to  pay  liim  tlie  value 
of  the  horses  towards  the  debt  which  Francis  owed  the 
plaintiff."  On  the  trial  the  plaintiff  proved  an  indebt- 
edness of  Francis  to  the  amount  of  $372.17,  and  that  the 
demand  had  been  placed  in  the  hands  of  an  attorney  for 

(e)  Olmstead  v.  Greenly,  18  Johnson,  12  ;  Farley  v.  Cleveland,  4  Cowen, 
432,  and  9  Cowen,  639;  Jennings  v.  Webster,  7  Cowen,  256;  Elhvood  v. 
Monk,  5  Wendell,  235 ;  ia  chapter  xv,  article  iii. 


430  Collateral  Undertakings.  [Ch.  xii. 

collection ;  that  Francis,  being  pressed  for  payment,  de- 
livered to  the  defendant  a  pair  of  horses,  upon  his  agree- 
ment to  pay  upon  the  demand  of  the  plaintiff  the  sum 
of  $160,  which  was  agreed  upon  as  their  value  ;  and  that 
the  defendant  thereupon  wrote  to  the  attorney  a  letter  con- 
taining this  expression :  "  I  have  taken  my  brother' s  team, 
and  will  be  accountable  to  you  for  the  same,  if  you  will 
be  so  good  as  not  to  trouble  him."  This  letter  was  sent 
by  the  defendant  to  the  attorney  by  the  hands  of  Francis, 
who  informed  him  of  the  arrangement ;  and  he  there- 
upon agreed  to  give  Francis  time,  and  did  so ;  but  this 
was  not  communicated  to  the  defendant. 

§  407.  The  defendant  moved  for  a  nonsuit,  on  the  ground, 
among  others,  that  the  letter  contained  only  a  proposition, 
which  was  not  binding  until  it  was  accepted,  and  the 
judge  directed  a  nonsuit  accordingly.  The  plaintiff 
moved  for  a  new  trial.  The  opinion  of  the  court,  delivered 
by  Jewett,  J.,  first  considered  the  question  whether  the 
plaintiff,  under  a  proper  count,  could  sustain  an  action 
to  enforce  the  defendant' s  promise  to  pay  the  price  of  the 
horses,  which  he  purchased.  The  authorities  were  cited 
and  commented  upon  at  length,  and  the  learned  judge 
came  to  the  conclusion,  that  the  weight  of  authority  was  in 
favor  of  the  proposition,  that  the  person  to  be  benefited  by 
a  promise  to  another  could  sustain  an  action  upon  it, 
although  he  was  a  stranger  to  the  consideration.  The 
opinion  then  examined  the  question  whether  the  statute 
of  frauds  would  prevent  a  recovery ;  upon  which  point 
the  learned  judge  concluded,  that  the  doctrine  that  a  new 
and  independent  consideration  would  take  out  of  the 
statute,  a  promise  to  the  creditor  to  pay  another' s  debt, 
was  unsound.  That  principle  he  thought  was  applicable 
only  to  promises  made  to  the  debtor ;  those  were  not  within 
the  statute ;  and  in  the  case  at  bar,  the  defendant' s  prom- 
ise was  obligatory  upon  him,  it  being  merely  to  pay  his 
own  debt  to  a  particular  person,  designated  by  his  own 
creditor.  But  because  the  plaintiff  had  counted  in  his 
declaration  upon  a  promise  made  to  himself,  and  not 


Art.  II.]  Collateral  Undertakings.  431 

upon  one  made  to  Francis  for  his  benefit,  the  motion  to 
set  aside  the  nonsuit  was  denied  ;  the  learned  judge  remark- 
ing :  "The  contract  set  out  in  each  of  the  special  counts  is 
widely  variant  from  the  one  proved." 

§  408.  Of  the  next  case,  Blunt  v.  Boyd,  3  Barbour,  209, 
A.  D.  1848,  also  in  the  Supreme  Court,  it  will  be  sufficient 
to  say  that  the  defendant  was  a  debtor  to  one  Rowley  ; 
that  he  and  Rowley  settled  their  accounts,  and  deducted 
from  the  sum  found  to  be  due  from  him  to  Rowley,  the 
amount  of  a  debt  due  from  Rowley  to  the  plaintiff,  the 
defendant  promising  to  pay  that  amount  to  the  plaintiff, 
and  giving  Rowley  his  note  for  the  balance ;  and  that 
when  an  agent  of  the  plaintiff  subsequently  called  upon 
the  defendant,  in  relation  to  the  payment  of  the  plaintiff's 
demand  "for  lumber  sold  to  Mr.  Rowley,"  the  defendant 
said  that  he  would  settle  it,  if  the  plaintiff  would  deduct 
$9,  for  unfinished  work  of  Rowley.  It  was  held  by  a 
majority  of  the  court,  that  as  the  defendant's  promise  to 
the  plaintiff's  agent  related  to  the  plaintiff's  demand 
against  Rowley,  it  was  clearly  within  the  statute  of  frauds  ; 
and  that  the  plaintiff  could  not  recover  upon  the  contract 
between  Rowley  and  the  defendant,  for  want  of  privity  as 
well  as  for  want  of  consideration.  The  court  regarded  the 
promise  as  being  without  consideration,  because  the  trans- 
action did  not  amount  to  a  discharge  of  the  defendant' s 
debt  to  Rowley  ;  and  thought  that  where  the  objection  for 
want  of  privity  had  been  overruled  in  this  class  of  cases, 
the  defendant  had  actually  received  money  or  property  as 
the  consideration  of  his  promise. 

• 

§  409.  The  case  of  Earle  v.  Crane,  6  Duer,  564,  decided 
in  the  New  York  Superior  Court  in  1857,  fully  affirms  the 
principle  of  BarTier  v.  BiiclcUn,  and  involves  also  the 
question  whether  the  original  parties  could  modify 
the  agreement  without  the  participation  of  the  beneficiary. 
There  the  plaintiff's  complaint  stated  that  on  the  first  of 
September,  1852,  he  was  a  creditor  of  Nathan  Meyer,  and 
that  Meyer  on  that  day  agreed  with  the  defendants  to  sell 


432  COLLATEEAL   UNDERTAKINGS.  [Cll.  XII. 

them  his  stock  of  goods,  at  prices  thereafter  to  be  agreed 
upon,  which  they  were  to  pay  as  follows :  by  paying  the 
plaintiff  $561.63  of  his  debt ;  by  deducting  $1,263.67  in  dis- 
charge of  a  debt  due  to  the  defendants  by  Meyer,  and  by 
accounting  for  the  remainder  to  Meyer ;  that  on  the  9th  of 
October,  1852,  the  goods  were  delivered  in  pursuance  of 
this  contract,  at  prices  agreed  upon,  amounting  to  $2,800, 
leaving  a  balance  of  $1,000  due  to  Meyer  ;  and  that  Meyer's 
claim  for  that  balance  had  been  assigned  to  the  plaintiff. 
The  complaint  asked  for  a  judgment  for  the  amount  of  the 
two  sums  of  $581.63  and  $1,000,  with  interest.  On  the 
trial  it  appeared  that  on  the  9th  of  October,  1862,  Meyer 
executed  an  absolute  bill  of  sale  of  the  goods  to  the  defend- 
ants, purporting  to  be  in  discharge  of  his  indebtedness  to 
them.  The  plaintiff' s  counsel  asked  the  witnesses  several 
questions,  tending  to  prove  a  previous  oral  agreement,  in 
the  terms  set  forth  in  the  complaint,  and  a  delivery  of  the 
goods  by  Meyer  and  an  acceptance  thereof  by  the  defend- 
ants, under  such  an  agreement.  Those  questions  were 
excluded,  and  the  complaint  was  dismissed. 

§  410.  Upon  exceptions  to  the  rulings,  a  new  trial  was 
granted,  Bosworth,  J.,  who  delivered  the  opinion  of  the 
court,  remarking,  "Proof  of  such  an  agreement,  as  is 
stated  in  the  complaint,  and  of  full  execution  of  it  on  the 
part  of  Meyer,  standing  alone,  would  entitle  the  plaintiff 
to  recover  the  $531.63.  The  plaintiff  could  sue  on  such  a 
promise  in  his  own  name,  although  not  a  party  to  the 
agreement  by  being  present  and  participating  in  the  mak- 
ing of  it ;  and  such  an  agreement  is  not  affected  by  the 
statute  of  frauds."  The  learned  judge  then  proceeded  to 
say  that  if  such  an  agreement  was  made,  it  might  be  modi- 
fied, before  delivery  and  acceptance  of  the  goods,  by  the 
act  of  Meyer  and  the  defendants,  without  the  participation 
of  the  plaintiff;  and  in  that  case  the  plaintiff  could  not 
recover ;  but  if  the  goods  wereactually  delivered  by  Meyer, 
and  accepted  by  the  defendants,  upon  the  terms  stated  in 
the  complaint,  the  subsequent  execution  of  an  absolute 
bill  of  sale,  could  not  affect  the  plaintiff's  right  to  recover 


Art.  II.]  Collateral  Unbertakings.  433 

the  amount  to  be  paid  to  him,  by  the  terms  of  the  original 
agreement. 

§  411.  The  case  of  The  State  Bank  at  New  Brunswick 
V.  3fettler,  2  Bosworth,  392,  decided  in  1858,  in  the  same 
court,  is  one  of  those  in  which,  it  is  believed,  the  test  of 
the  application  of  the  statute  is  made  to  depend  upon  too 
narrow  a  rule.(/)  Stripped  of  much  extraneous  matter, 
the  facts  were  that  the  defendants  had  promised  the 
drawer  of  a  bill  of  exchange  upon  them,  which  had  been 
discounted  by  the  plaintiffs  but  had  been  protested  for 
non-acceptance,  and  was  not  yet  payable,  that  they  would 
pay  it  to  the  plaintiffs  ;  in  consideration  that  the  drawer 
would  permit  certain  grain,  then  in  transitu,  to  go  forward 
to  them  for  sale  on  commission ;  assign  to  them  his  canal 
barges  and  other  personal  property;  and  confess  a  judg- 
ment so  as  to  bind  his  real  estate.  It  had  been  the  usual 
course  of  business,  between  the  drawer  and  the  defendants, 
that  he  should  consign  grain  to  them,  and  draw  upon  them 
against  the  proceeds  ;  and  it  is  to  be  inferred  from  some 
of  the  remarks  of  the  court,  that  the  object  of  the  transac- 
tion was  to  secure  the  defendants  for  advances  or  accept- 
ances previously  made,  as  well  as  to  provide  for  payment 
of  the  plaintiff's  bill.  A  judgment  for  the  defendants 
rendered  upon  a  referee's  report  was  affirmed  on  appeal. 
The  opinion  of  the  court  (Bosworth,  J.,)  turns  upon  the 
following  extract :  "  To  take  the  case  out  of  the  statute  of 
frauds,  the  verbal  promise  of  a  third  person,  made  to  a 
debtor  of  the  plaintiffs,  to  pay  to  the  latter  a  debt  which 
the  promisee  owes  them,  must  find  its  consideration  in  a 
purchase  of  property  from  the  promisee ;  so  that  the 
amount  which  is  promised  to  be  paid,  is  to  be  paid  in  dis- 
charge of  the  proper  debt  of  the  promisor :  or  the  transac- 
tion and  promise  must  be  such,  that  making  the  promised 
payment  to  the  plaintiffs,  as  creditors  of  the  promisee, 
will  operate,  incidentally,  as  a  satisfaction  of  tlie  debt  of 
the  latter,  and,  primarily,  as  payment  of  the  debt  of  the 

(/)  See  ante,  §  393. 
55 


434  COLLATEEAL   UnDEETAKINGS.  [Cll.  XII. 

promisor."  ,  .  .  "  When  the  promise  places  the  prom- 
isor in  the  position  of  a  surety  for  the  debt  of  his  promisee, 
the  case  falls  clearly  within  the  statute,  and  the  agreement 
is  void." 

§  412.  In  1859,  the  Court  of  Appeals  had  occasion  defi- 
nitely to  settle  the  rule  in  New  York,  with  respect  to  the 
common  law  right  of  the  beneficiary  to  maintain  an  action 
upon  a  contract  between  others ;  and  incidentally  with 
respect  to  the  application  of  the  statute.  In  Laiorence  v. 
Fox,  20  New  York,  268,  it  appeared  that  one  Holly  loaned 
to  the  defendant  the  sum  of  $300,  on  his  promise  to  pay 
it  the  next  day  to  the  plaintiff,  in  discharge  of  a  debt  due 
him  by  Holly,  of  the  same  amount,  which  was  then  paya- 
ble. The  plaintiff  recovered  in  the  court  below,  not- 
withstanding the  defendant's  objections,  that  the  agree- 
ment with  Holly  was  void  for  want  of  consideration,  and 
that  there  was  no  privity  between  the  plaintiff  and  the 
defendant.  Upon  appeal  this  judgment  was  affirmed  by 
a  vote  of  six  judges  against  two.  The  leading  opinion 
was  delivered  by  Gray,  J.,  who  placed  his  decision  chiefly 
upon  the  ground,  that  in  consequence  of  the  defendant's 
duty  to  pay  the  debt,  the  law  implied  a  promise  to  that 
effect  from  the  defendant  to  the  plaintiff;  but  some  of  the 
majority  thought  that  Holly  was  to  be  regarded  as  the 
agent  of  the  defendant.  A  brief  abstract  of  this  opinion 
will  be  found  in  the  note,  which  also  contains  a  reference 
to  numerous  other  cases  in  the  same  state,  upon  this 
most  perplexing  question,  (p') 

(g)  After  disposing  of  an  objection  to  the  testimony,  and  of  the  question 
of  consideration,  the  learned  judge  proceeded  to  consider  the  objection  of 
want  of  privity,  citing  and  commenting  at  length  upon  the  cases  in  England, 
New  York,  and  Massachusetts.  In  the  course  of  this  part  of  the  opinion, 
he  referred  to  Seaman  v.  Whitney,  24  Wendell,  260,  as  containing  an  inti- 
mation from  the  court,  notwithstanding  that  the  plaintifif  was  not  allowed  to 
recover  upon  the  peculiar  facts  of  ihe  case,  that  an  undertaking  to  pay  the 
creditor  may  be  implied,  from  an  arrangement  to  that  effect  between  the 
defendant  and  the  debtor;  and  to  The  Delaware  and  Hudson  Canal  Com- 
pany V.  Westchester  County  Bank,  4  Denio,  97 ;  and  a  remark  of  the  court 


Art.  II.]  Collateral  Undertakings.  436. 

§  413.  In  Maryland,  the  earlier  cases  were  somewhat 
inconclusive ;  {?i)  but  the  rule  is   now  established  with 

in  Brewer  v.  Dyer,  7  Gushing,  337,  (see  note  to  §420,)  as  sustaii)ing  llie 
same  doctrine  of  an  implied  promise.  But,  he  continued,  it  was  urged,  on 
the  part  of  tiie  defendant,  that  because  the  defendant  was  not  in  any  sense, 
a  trustee  of  Holly's  property  fqr  the  benefit  of  the  plaintiff,  the  law  will  not 
imply  a  promise.  This  argument  the  learned  judge  answered  by  Faying, 
that  in  the  cases  where  there  was  such  a  trust,  the  duty  of  the  trustee  to 
pay  according  to  the  terras  of  the  trust,  implies  a  promise  to  do  so;  and  that 
in  this  case  the  defendant,  upon  ample  consideration  received  from  Holly, 
promised  Holly  to  pay  his  debt  to  the  plaintiff;  this  made  it  his  duty  to  do 
so,  and  as  well  implied  a  promise  to  that  effect,  as  if  he  had  been  made  a 
trustee  of  property  to  be  converted  into  cash  with  which  to  pay.  The  prin- 
ciple that  the  person  for  whose  benefit  a  contrr-ct  was  made,  may  sue  for  ita 
breach,  "has  been,"  he  continued,  "applied  to  trust  cases,  not  because  it 
was  exclusively  applicable  to  those  cases,  but  because  it  was  a  principle  of 
law,  and  as  such,  applicable  to  those  cases."  He  then  said  that  Holly  could 
not  discharge  the  promise,  because  it  was  made  for  the  plaintiff's  benefit, 
and  in  accordance  with  legal  presumption,  accepted  by  him,  until  his  dissent 
was  shown.  The  cases,  he  concluded,  establish  the  validity  of  a  parol  prom- 
ise. Three  of  the  judges  concurred  fully  in  this  opinion,  and  two  concurred 
in  the  result,  on  the  ground  "that  the  promise  was  to  be  regarded  as  made 
to  the  plaintiff  through  the  medium  of  his  agent,  whose  action  he  could 
ratify,  when  it  came  to  his  knowledge,  though  taken  without  his  being  privy 
thereto."  The  two  remaining  judges  dissented  from  the  result;  Comstock, 
J.,  delivering  an  elaborate  opinion  in  support  of  the  proposition,  that  the 
plaintiff  could  not  maintain  Uie  action,  because  there  was  no  privity  of  con- 
tract between  him  and  the  defendant.  This  case  has  been  cited  with  appro- 
bation, and  the  general  principles  established  by  the  decision  have  been  fol- 
lowed in  Burr  v.  Beers,  24  New  York,  178  (A.  D.  1861),  where  the  Court 
of  Appeals  affirmed  a  judgment  in  a  personal  action  in  favor  of  a  mortgagee, 
against  a  grantee  of  the  mortgaged  premises,  whose  deed  contained  a  recital 
that  he  had  assumed  to  pay  the  mortgage;  in  Becker  v.  Torrance,  31  New 
York,  G31  (A.  D.  18G4),  where  it  was  held,  that  a  plaintiff  in  an  execution 
might  maintain  an  action  against  a  receiver  of  the  judgment  debtor's  prop- 
erty, whose  title  to  the  goods  of  the  d'"btor  was  subordinate  to  the  lien  of 
the  execution,  upon  his  verbal  promise  to  the  officer  to  sell  the  goods,  and 
apply  the  proceeds  to  the  discharge  of  the  execution  ;  and  in  Dingeldein  v. 
The  Third  Avenue  Railroad  Company,  37  New  York,  575  (A.  D.  1SG8), 
■where  a  plaintiff  was  allowed  to  recover  against  the  assignee  of  personal 
property  named  in  an  instrument,  which  specified  that  it  was  taken,  subject 
to  the  payment  of  all  money,  which  the  assignors  were  bound  to  pay,  on 

(/i)  See  Owings  v.  Owings,  1  Harris  and  Gill,  484  (A.  D.  1827). 


436  COLLATEEAL  UnDEETAKINGS.      [Ch.  XII. 

respect  to  the  common  law  question,  and  probably  also 
that  arising  under  the  statute  of  frauds,  by  the  recent 
case  of  Small  v.  Schaefer,  24  Maryland,  143  (A.  D.  1865). 
The  facts  of  this  case,  as  far  as  they  are  material  to  the 

account  of  claims  of  a  certain  description,  the  plaintiflfs'  being  one  of  that 
description.  But  in  Kelly  v.  Roberts,  40  New  .York,  432  (June,  1869),  an 
important  distinction  was  taken.  This  was  an  action  in  favor  of  a  sheriff, 
to  recover  the  amount  due  by  the  defendant  to  Everett  and  Jones,  against 
■whom  the  plaintiff  held  an  attachment,  the  action  being  brought  in  pursu- 
ance of  a  provision  of  the  New  York  code  of  procedure,  authorizing  a  sheriff 
holding  an  attachment  to  collect  debts  due  to  the  defendant  therein.  It 
appeared  upon  the  trial,  that  by  a  written  agreement,  under  seal,  between  the 
defendant  in  this  action  and  Everett  and  Jones,  the  latter  transferred  to  the 
former  a  quantity  of  goods,  and  the  former  agreed  to  pay  the  latter  therefor 
thirty  per  centum  of  the  actual  cost ;  an  inventory  to  be  forthwith  taken 
specifying  the  cost  of  each  article,  and  to  be  annexed  to  the  agreement  when 
completed.  It  was  also  verbally  agreed  between  them,  (but  the  testimony 
did  not  show  whether  this  verbal  agreement  was  made  at  the  same  time 
with  the  contract;  or  afterwards,  when  the  inventory  was  made),  that  part 
of  the  consideration  money  was  to  be  paid,  by  the  defendant  paying  to  cer- 
tain persons  designated,  two  notes  particularly  described,  thereafter  to  mature, 
which  were  made  by  Everett  and  Jones,  and  held  by  the  persons  so  named ; 
but  neither  the  defendant  nor  Everett  and  Jones  had  communicated  this 
provision  to  such  persons,  nor  did  it  appear  that  the  latter  had  in  any  man- 
ner assented  thereto.  The  attachment  was  issued  and  served  about  the  time 
when  the  first  note  matured,  but  before  it  was  paid.  The  plaintiff  had  a 
judgment,  which  the  Court  of  Appeals  affirmed.  James,  J.,  delivering  the 
prevailing  opinion,  took  the  distinction  between  this  case,  and  Lawrence  v. 
Fox  and  kindred  case's,  that  here  the  transaction  was  consummated,  before 
any  direction  was  given  to  pay  the  notes,  so  that  the  defendant  had  become 
a  debtor  of  Everett  arrd  Jones ;  the  agreement  to  pay  the  notes  was  there- 
fore made  without  any  new  consideration  ;  and  never  having  been  commu- 
nicated to  the  holders  of  the  notes,  or  assented  to  by  them,  it  was  revocable 
at  the  pleasure  of  Everett  and  Jones,  until  it  was  acted  upon  by  the  defend- 
ant. He  added,  that  apparently  the  verbal  agreement  was  made  after  the 
written  assignment  and  covenant  by  the  defendants  to  pay  Everett  and 
Jones;  but  that  the  precise  time  was  immaterial;  because,  if  it  was  made 
before,  or  at  the  same  time  when  the  covenant  was  entered  into,  it  would 
be  merged  in  the  latter :  and  supposing  it  to  have  been  made  afterwards, 
there  was  no  delivery  of  money  or  property  to  the  defendant  for  the  benefit 
of  another,  or  the  creation  of  any  trust  or  agency  for  another:  it  was  simply 
an  executory  contract  without  consideration;  in  effect,  a  license;  so  that  as 
matter  of  law,  the  debt  was  still  due  to  Everett  and  Jones,  and  liable  to  the 


Art.  II.]  Collateral  Undertakings.  487 

present  discussion,  were  that  one  McGinn,  a  broker,  being 
in  default  to  the  plaintiflf  and  to  the  defendant,  (two  of  his 
customers),  the  defendant  in  consideration  of  his  giving 
him  an  order  on  a  bank  for  five  state  bonds,  payable  to 

attachment.  In  the  result  of  this  opinion,  four  of  the  other  judges  concurred ; 
one  of  them,  however,  putting  his  decision  upon  the  ground,  that  the  fair 
inference  was,  that  the  verbal  agreement  was  made  at  the  same  time  with 
the  covenant,  and  was  therefore  merged  into  it ;  and  two  of  the  judges  were 
for  reversal.  The  cases  of  Therasson  v.  McSpedon,  2  Hilton,  1,  in  the  New 
Tork  Common  Pleas,  A.  D.  1858;  Seaman  v.  Hasbrouck,  35  Barbour,  151, 
A.  D.  1861,  in  the  Supreme  Court;  and  Huber  v.  Ely,  45  Barbour,  169,  in 
the  same  court,  A.  D.  1865,  also  hold,  that  a  promise  to  pay  a  debt,  made  to 
a  debtor,  upon  a  consideration  proceeding  from  him,  is  not  within  the  statute 
of  frauds,  and  may  be  enforced  by  an  action  in  favor  of  the  creditor.  In 
each  of  them,  the  consideration  of  the  promise  was  the  purchase  of  property 
from  the  debtor;  and  the  promise  to  him  is  stated  to  constitute  the  founda- 
tion of  the  creditor's  action.  In  Huber  v.  Ely,  the  reason  assigned  for  the 
decision  upon  the  application  of  the  statute,  was  that  "it  is  the  promise  of 
one  deriving  a  benefit  by  means  of  the  undertaking,  and  having  funds 
placed  in  his  hands  for  the  payment  of  the  indebtedness,  which  he  promises, 
in  consideration  thereof,  to  discharge ;  "  in  the  others,  the  decision  was  put 
upon  the  ground,  that  the  promise  Avas  only  to  pay  the  promisor's  own  debt 
in  a  particular  way.  However,  in  Seaman  v.  Hasbrouck,  the  court  added 
that  the  purchase  money  was  a  fund  for  the  benefit  of  the  creditors;  and 
that  the  promise  might  be  regarded  as  made  to  them  through  the  debtor  as 
their  agent.  But  in  Connor  v.  Williams,  2  Robertson,  40,  decided  in  the 
New  York  Superior  Court,  A.  D.  1864,  Robertson,  C.  J.,  showed  very  clearly 
that  the  doctrine  of  an  agency  in  the  debtor  for  the  creditor,  brings  the  case 
directly  within  the  statute  of  frauds;  and  he  thought  that  the  action  could 
be  consistently  sustained  only  on  the  idea  of  a  general  duty  to  pay  the  debt, 
upon  which  the  law  implied  a  promise.  Before  the  decision  in  Lawrence  v. 
Fox,  the  rule  in  New  York  was  rendered  uncertain  by  contradictory  decis- 
ions. See  besides  the  cases  cited  in  the  text,  Schemerhorn  v.  Vanderhey- 
den,  1  Johnson,  139;  Cumberland  v.  Codrington,  3  Johnson's  Chancery, 
229,  on  p.  254,  per  Kent.  Chancellor;  Shear  v.  Mallory,  13  Johnson,  496; 
Safford  V.  Stevens,  2  Wendell,  158;  Sailly  r.  Cleveland,  10  Wendell,  156; 
Seaman  v.  Whitney,  24  Wendell,  260;  Berly  v.  Taylor,  5  Ilil),  577;  Dela- 
ware and  Hudson  Canal  Company  v.  Westchester  County  Bank.  4  Denio, 
97 ;  Bigelow  v.  Davis,  16  Barbour,  561.  In  the  case  in  the  4th  of  Denio, 
which  is  mainly  relied  upon  as  sustaining  the  doctrine  of  an  implied  prom- 
ise, there  was  a  special  demurrer  to  a  declaration  in  assumpsit,  alleging  that 
certain  debtors  of  the  plaintiffs,  placed  a  bill  of  exchange  in  the  defendants 
hands,  who  undertook  to  collect  it,  and  to  pay  the  amount  to  the  plaintiffs 


438  Collateral  Undertakings.         [Ch.  xii. 

bearer,  (three  of  wliicli  had  been  purchased  with  the 
defendant' s  money,  and  on  his  order),  there  deposited  as 
security  for  any  overdraft  of  McGinn,  verbally  agreed 
with  him,  that  he  would  pay  the  amount  of  an  overdraft 
already  paid  and  charged  against  McGinn  by  the  bank, 
and  also  McGinn' s  dishonored  check  held  by  the  plaintiff. 
Three  points  were  made  by  the  defence,  namely,  that  there 
was  no  privity  of  contract,  that  there  was  no  considera- 
tion for  the  contract,  and  that  the  contract  was  void  by 
the  statute  of  frauds.  The  Court  of  Appeals  affirmed  a 
judgment  for  the  plaintiff.  With  respect  to  the  first 
point  it  was  held,  upon  a  review  of  the  cases  on  either 
side,  that  the  prevailing  doctrine  in  this  country  was,  that 
the  person  to  be  benefited  by  a  promise  could  maintain  an 
action  upon  it,  and  that  it  was  to  be  deemed  to  be  made 
to  him  if  adopted  by  him.  The  objection  that  the  promise 
was  void  under  the  statute  of  frauds  was  overruled,  on 
the  ground  that  the  leading  object  of  the  promisor  was  to 
benefit  himself.  But  it  was  clearly  sufficient  to  say  that 
the  promise  was  made  to  the  debtor. 

§  414.  In  Indiana  the  ruling  in  the  New  York  cases  is 
supposed  to  have  been  followed  in  Decker  v.  Shaffer,  3 
Indiana,  187,  A.  D.  1851.  The  action  was  commenced  in 
a  justice's  court  against  the  defendant  as  administrator  of 


when  collected;  and  that  it  had  been  collected,  but  that  the  defendants,  upon 
special  request,  had  refused  to  pay  the  money.  It  was  specified  as  a  cause 
of  demurrer,  that  the  declaration  did  not  aver  any  promise  to  the  plaintiffs. 
The  court  overruled  the  demurrer,  Jewett,  J.,  saying,  that  a  contract  might 
be  set  "out  in  pleading  according  to  its  words  or.its  legal  effect;  and  here 
"  the  ground  of  the  action  is  a  promise  made  to  another  for  the  benefit  of 
the  plaintiffs,  and  not  on  a  promise  to  the  plaintiffs;"  consequently  the 
declaration  stated  it  according  to  the  fact.  It  is  to  be  inferred  from  the 
learned  judge's  remarks,  that  he  regarded  a  declaration  for  money  had  and 
received  as  stating  the  transaction  according  to  its  legal  effect.  Bronson,  J., 
said  that  if  the  question  was  new,  his  opinion  would  be,  that  the  pleader 
should  have  stated  the  promise  as  having  been  made  to  tiie  plaintiffs;  but 
upon  the  authority  of  the  report  of  Dutton  v.  Poole,  T.  Ilaymond,  202,  he 
agreed  that  it  was  right  to  state  it  as  having  been  made  to  the  debtors. 


Art.  II.]  Collateral  Undertakings.  439 

one  Shookman,  "to  recover  a  debt  claimed  to  have  been 
due  from  Shookman"  to  the  plaintiff.  It  went  to  the  Cir- 
cuit Court  by  appeal ;  and  the  proof  was  that  the  plaintiff 
sold  a  mare  to  one  Cuppy,  and  took  his  note  for  the  pur- 
chase money  ;  and  that  Shookman  afterwards  bought  the 
mare  from  Cuppy,  on  a  promise  to  pay  to  the  plaintiff  the 
note  held  by  him.  In  the  Circuit  Court  the  plaintiff 
recovered,  and  the  judgment  was  reversed  on  error  to  the 
Supreme  Court.  Some  of  the  remarks  in  the  opinion,  if 
read  without  reference  to  the  rest  of  the  case,  would  lead 
to  the  inference  that  the  court  intended  to  hold,  that  the 
promise  of  Shookman  to  Cuppy  was  within  the  statute  of 
frauds.  But  probably  the  decision  turned  upon  the  fact, 
that  the  plaintiff  declared  upon  a  promise  from  Shookman 
to  himself;  and  the  key  note  to  the  decision  is  to  be  found 
in  these  remarks,  at  the  beginning  of  the  opinion:  "The 
judgment  cannot  be  upheld.  The  plaintiff  below  did  not 
make  out  his  case.  He  proved  no  indebtedness  from 
Shookman  to  him."(t) 

§  415.  In  Illinois  the  same  rule  prevails.  Of  the  cases 
where  the  application  of  the  statute  came  in  question,  it 
was  held  in  Eddy  v.  Roberts^  17  Illinois,  605,  A.  D.  1856, 
that  upon  the  merits,  the  plaintiffs  would  be  entitled  to 
recover  upon  the  evidence,  which  proved  a  verbal  promise 
of  the  defendant,  made  to  one  Williams,  in  considera- 
tion of  a  sale  of  property  by  him,  to  pay  a  debt  due  by 
Williams  to  the  plaintiffs.     But  because  the  plaintiffs  had 


(t)  It  seems  to  have  been  once  held  in  Indiana,  that  a  stranger  to  the 
consideiation  could  not  sue  for  breach  of  a  contract.  Farlow  v.  Kemp,  7 
Blackford,  544  (1845);  Bird  v.  Lanius,  7  Indiana,  G15  (185G).  But  later  cases 
hold  that  the  person  to  be  benefited  may  maintain  the  action.  Day  v.  Patter- 
son, 18  Indiana,  114  (18G2) ;  Lamb  v.  Donovan,  19  Indiana,  40  (18G2) ;  Ray- 
mond V.  Pritchard,  24  Indiana,  318  (18G5).  One  case  assigns  the  merger  of 
the  systems  of  law  and  equity  as  the  reason  why  the  course  of  the  decisions 
was  changed,  an  equitable  rule  having  suspended  the  legal.  Beals  v.  Beals, 
20  Indiana,  1G3  (18G3).  The  ruling  in  the  New  York  case  of  Barker  v. 
Bucklin,  is  also  approved  in  Nelson  v.  Hardy,  7  Indiana,  364,  A.  D.  1856, 
cited  in  a  subsequent  chapter. 


440  Collateral  Undertakings.         [Ch.  xii. 

declared,  not  upon  the  defendant's  promise  to  Williams, 
but  upon  a  similar  promise  subsequently  made  to  them, 
upon  a  new  consideration  moving  from  them,  which  the 
court  held  to  be  within  the  statute ;  a  judgment  for  the 
plaintiffs  was  reversed,  with  leave  to  amend  the  declara- 
tion. It  was  however  suggested  by  the  court,  that  the 
plaintiffs  should  allege  in  declaring  that  the  special  con- 
tract was  made  to  them  ;  but,  as  we  have  already  shown, 
this  is  not  only  contrary  to  the  ruling  in  New  York,  but 
inconsistent  with  the  principles,  upon  which,  according 
to  the  modern  cases,  the  action  depends,  (y) 

§  416.  In  Alabama  the  earlier  decisions  were  to  the 
effect,  that  the  person  for  whose  benefit  a  contract  was 
made  could  not  maintain  the  action  at  common  law, 
although,  where  he  was  a  creditor  of  the  other  party,  the 
promise  to  his  debtor  was  not  within  the  statute ;  but  that 
a  new  promise  to  the  creditor,  by  the  person  who  had 
agreed  to  pay  the  debt,  would  remove  all  objections  to  the 
recovery,  and  the  action  must  be  founded  upon  that 
promise.  (^)  But  in  Mason  v.  Hall,  30  Alabama,  699, 
A.  D.  1857,  the  rule  was  laid  down  in  substantial  harmony 
with  Barker  v.  BucTclin,  and  kindred  cases.  The  com- 
plaint was  for  the  hire  of  a  negro  man ;  and  the  proof  was 
that  the  plaintiff  had  hired  the  negro  to  the  defendant's 
son  for  one  year,  at  a  specified  price  ;  and  that  very  soon 
afterwards,  the  son  hired  the  negro  to  the  defendant,  upon 
an  agreement  that  he  would  pay  to  the  plaintiff  the  price 
agreed  upon,  deducting  five  dollars,  which  the  son  agreed 
to  pay.  The  plaintiff  was  nonsuited,  and  on  a  motion  .to 
set  aside  the  nonsuit,  the  court  held  that  the  promise  was 

(/)  In  Prather  v.  Vineyard,  4  Gilman,  40  (1847),  and  Brown  v.  Strait,  19 
Illinois,  88  (1857),  the  general  principle  with  respect  to  the  application  of 
the  statute  is  affirmed,  in  harmony  with  Eddy  v.  Roberts;  and  the  common 
law  rule  is  laid  down  the  same  way  in  Bristow  v.  Lane,  21  Illinois,  194 
(1859). 

{k)  Hitchcock  v.  Lukens,  8  Porter,  333  (A.  D.  1838);  McKenzie  v.  Jack- 
son, 4  Alabama,  230  (A.  D.  1842);  Lee  v.  Fontaine,  10  Alabama,  755 
(A.  D.  1846). 


Art.  II.]  Collateral  Undertakings.  441 

not  within  the  statute  of  frauds ;  that  where  a  parol  prom- 
ise is  made  to  one  for  the  benefit  of  another,  the  latter 
may  maintain  an  action  upon  it,  although  the  promisee 
might  also  sue ;  but  that  in  this  case  there  was  a  fatal  vari- 
ance between  the  complaint  and  the  proof,  because  the  com- 
;plaint  relied  upon  a  hiring  by  the  plaintiff  to  the  defend- 
ant, instead  of  the  defendant's  promise  to  his  son.(^) 

§  417.  The  foregoing  abstracts  of  cases  present  a  great 
diversity  of  opinion,  touching  the  principles,  upon  which 
the  statute  of  frauds  is  considered  inapplicable,  and  the 
action  is  sustained  at  common  law  ;  as  well  as  the  ques- 
tions incidentally  arising  out  of  the  common  law  rule.(77i) 
It  remains  only  to  notice  the  peculiar  ruling  of  the  courts 
of  Missouri.  It  was  said  in  Rohhins  v.  Ayres^  10  Mis- 
souri, 638,  A.  D.  1847  that  upon  a  simple  contract 
between  two  persons,  that  one  will  pay  a  debt  due  by  the 
other,  the  creditor  can  maintain  an  action,  and  the  case  is 
not  within  the  statute  of  frauds.  But  in  that  case  the 
plaintiff  was  not  allowed  to  recover ;  partly  because  the 
contract  between  his  debtor  and  the  defendant  was  under 
seal;  and  partly  because  it  provided  for  the  payment 


(?)  And  see  Carperon  v.  Clarke,  11  Alabama,  259,  A.  D.  1847.  The  com- 
mon law  rule  had  been  previously  laid  down,  substantially  in  accordance 
with  the  decision  in  Mason  v.  Hall.  See  Huckabee  v.  May,  14  Alabama, 
263;  Hoyt  v.  Murphy,  18  Alabama,  316. 

(m)  The  following  additional  cases  are  in  general  accord  with  those  pre- 
viously cited,  upon  the  common  law  question,  or  that  arising  under  the 
statute  of  frauds.  New  Jkrset,  Berry  v.  Doremus,  1  Vroom,  399  (A.  D. 
1863).  Kentockt,  Smith  v.  Lewis,  3  B.  Monroe,  229  (1842);  Allen  v. 
Thomas,  3  Metcalfe,  198  (1860).  South  Carolina,  Brown  v.  O'Brien,  1 
Kichardson,  268  (1845);  Mann  v.  Mann,  2  Richard.son,  123  (1845);  Thomp- 
son  V.  Gordon,  3  Strobhart,  196  (1848).  Wisconsin,  Kimball  v.  Noyes,  17 
Wisconsin,  095  (1864).  Minnesota,  Sanders  v.  Cla.son,  13  Minnesota,  379 
(1848).  Nevada,  Alcalda  v.  Morales,  3  Nevada,  132  (1867).  Georgia,  Ford 
V.  Finney,  35  Georgia,  258  (18G6).  Texas,  Wallace  v.  Freeman,  25  Te.rap, 
Supplement,  91  (1860).  The  common  law  rule  seems  to  have  been  laid 
down  in  the  same  way  in  California,  Kreutz  v.  Livingston,  15  California, 
344  (1860) ;  and  in  Delaware,  Farmers'  Bank  v.  Brown,  1  Harrington,  330 
(1834.) 

56 


442  COLLATEKAL  UnDEKTAKINGS.  [Cll.  XII. 

of  the  sum  of  $600  to  the  plaintiff  and  sundry  other 
creditors  of  the  other  party,  without  mentioning  the 
amount  of  the  debt  due  to  each  respectively,  or  even  the 
number  or  names  of  the  beneficiaries  ;  but  describing  them 
as  the  hands  employed  upon  a  certain  boat,  the  sale  of 
which  formed  the  consideration  of  the  promise.  After 
the  contract  was  executed,  but  before  the  boat  was  taken 
away,  "  the  instrument  was  read  to  the  hands,  and  they 
accepted  its  terms."  But  the  court  said  that  the  covenant 
merged  all  simple  contracts,  "and  a  simple  promise  to  pay 
that  sum  afterwards  would  be  inoperative."  But  in  sub- 
sequent cases,  the  courts  of  Missouri  have  apparently 
adopted  a  rule  which  practically  denies  the  existence  of 
any  common  law  right  on  the  part  of  the  creditor,  to 
maintain  an  action  upon  a  contract  to  pay  the  debt,  made 
between  the  debtor  and  a  stranger.  It  would  seem  to 
follow,  as  the  result  of  the  most  recent  decisions  in  that 
state,  that  where  the  consideration  proceeded  from  the 
debtor  and  the  promise  was  made  to  him,  it  will  be 
regarded  as  having  been  made  exclusively  for  his  benefit 
and  protection,  and  as  a  matter  with  which  the  creditor 
has  no  concern.  The  ruling  upon  the  application  of  the 
statute  of  frauds  is  consequently  of  no  importance,  as 
respects  this  kind  of  action.  (?i) 

(n)  There  was  a  dictum  in  Bank  of  Missouri  v.  Benoist,  10  Missouri, 
519,  A.  D.  1847,  to  the  effect  that  the  common  law  permitted  a  person  to 
enforce  a  contract  between  others,  made  for  his  benefit ;  but  it  was  not  neces- 
sary to  the  decision.  But  in  Manny  v.  Frasier,  27  Missouri,  419,  A.  D.  1858, 
the  defendant's  intestate  had  purchased  the  interest  of  one  Bell  in  the  firm 
of  Bell  and  Sticknell,  and  on  coming  into  the  firm  had  agreed  with  them  to 
pay  certain  debts  of  the  firm  ;  among  others,  notes  held  by  the  plaintiffs.  A 
judgment  for  the  plaintiffs  was  reversed  upon  appeal;  the  court  saying 
that  the  case  did  not  fall  within  the  common  law  rule  recognized  in 
Robbins  v.  Ayres,  and  Bank  of  Missouri  v.  Benoist,  and  that  there  was 
no  privity  of  contract  between  the  plaintiffs  and  the  intestate.  The  recog- 
nized rule  was  illustrated  by  a  promise  of  A  to  pay  B  for  the  benefit  of  C. 
And  the  principle  is  more  fully  explained  in  Page  v.  Becker,  31  Missouri, 
466  (A.  D.  1862).  There  it  was  held  that  neither  a  mortgagee  nor  his  assignee 
could  recover,  upon  a  promise  of  the  defendant  to  the  mortgagor,  to  pay  the 
amount  of  a  mortgage  given  to  secure  certain  notes  for  the  purchase  money 


Art.  III.]         Collateral  Undertakings.  443 

ARTICLE  III. 

American  cases  holding  that  the  statute  applies  to  the  action. 

§  418.  The  State  of  Massachusetts  is  generally  regarded 
as  one  of  those,  whose  courts  hold  that  the  statute  of 
frauds  applies,  where  a  creditor  sues  upon  a  promise  made 
to  his  debtor,  whereby  the  promisor  undertakes  to  pay 
the  debt ;  and  such  appears  to  be  the  leaning  of  the  courts 
in  that  State,  although  a" careful  examination  of  the  adju- 
dicated cases  will  show  that  the  question  is  not  yet  con- 
clusively settled.  The  case  from  which  the  contrary 
impression  is  derived  is  Curtis  v.  Brown,  59  Massachu- 
setts (5  Gushing),  488,  decided  A.  D.  1850.  The  report 
says  that,  "the  alleged  cause  of  action  was  a  verbal  prom- 
ise by  the  defendant  to  pay  the  plaintiff,  the  amount  of  a 
bill  originally  due  him  from  one  Augustus  A.  Coffin;" 
from  which  statement  it  appears  that  the  plaintiff,  as  in 
Barker  v.  BucJclin,{a)  relied,  not  upon  the  contract  be- 
tween his  debtor  and  the  defendant,  but  upon  a  promise 
to  himself.  At  the  trial,  it  appeared  that  Coffin  had 
entered  into  a  contract  with  the  defendants,  to  erect  certain 
houses  for  them ;  and  before  the  stipulated  period,  (as 
extended  by  a  subsequent  agreement,)  had  expired,  a  ver- 
bal agreement  was  made  between  him  and  the  defendants ; 
whereby  he  released  them  from  the  contract,  and  trans- 
ferred to  them  the  building  materials  on  the  premises, 
upon  their  verbally  undertaking  to  pay  all  the  outstand- 
ing bills  for  work  upon  the  buildings  ;  among  others  one 

of  the  mortgaged  premises ;  the  equity  of  redemption  having  been  conveyed  to 
the  defendant,  upon  his  verbal  agreement  to  pay  the  notes  and  the  mortgage. 
It  was  said  that  the  defendant's  agreement  "was  exclusively  for  the  benefit 
of  his  grantors,  and  was  a  matter  entirely  between  the  parties  to  tiiat  deed." 
The  opinion  concludes:  "There  is  evidence  that  Becker  recognized  his  lia- 
bility to  pay  the  notes,  both  before  and  after  they  had  been  assigned  by 
Hampton  to  the  plaintiff;  but  the  plaintiff  does  not  go  upon  the  hypothesis 
of  a  promise  by  Becker  to  him  directly.  No  such  case  is  made  by  the 
petition;  no  express  promise  is  averred  therein;  and  if  there  had  been,  it 
would  have  been  without  consideration." 
(a)  See  ante,  §  406. 


444  Collateral  Ujstdertakin-gs.  [Ch.  xii. 

due  to  the  plaintiff,  whicli  was  particularly  mentioned  and 
assented  to  by  the  defendants.  The  defendants  thereupon 
requested  Coffin,  to  inform  the  plaintiff  and  the  oth-er  cred- 
itors of  the  arrangement ;  to  request  them  to  make  out 
their  bills  to  the  defendants  ;  and  to  say  to  them  that  they 
(the  defendants)  would  pay  the  bills  ;  which  was  done  by 
Coffin,  and  the  plaintiff  s  bill  made  out  accordingly.  Coffin 
also  made  a  verbal  agreement  with  the  plaintiff  and  the 
other  creditors,  ''  to  look  to  the  (^efendants  for  their  pay  ; " 
and  the  defendants  in  fact  paid  several  of  the  bills.  The 
judge  ruled  at  the  trial  that  the  defendants'  promise  was 
v-oid  by  the  statute  of  frauds,  and  the  jury  under  his  in- 
structions, found  a  verdict  for  the  defendants. 

§  419.  A  motion  for  a  new  trial  upon  exceptions  was 
denied  by  the  Supreme  Court,  Shaw,  C.  J.,  delivering  the 
opinion.  He  assumed  that  under  the  circumstances  of 
the  case  the  promise  of  the  defendants,  communicated  at 
their  request  to  the  plaintiff  by  Coffin,  was  equivalent  to 
a  dii'ect  promise  to  the  plaintiff ;  and  he  then  proceeded  to 
examine  the  question  whether  the  promise  was  within  the 
statute  of  frauds,  evidently  referring,  throughout  the  whole 
of  the  opinion,  to  the  promise  made  through  Coffin  to  the 
plaintiff  directly.  He  refuted  the  idea  that  the  relinquish- 
ment of  a  lien,  benefit,  or  advantage  possessed  by  the 
plaintiff,  would  take  out  of  the  statute  a  promise  to  pay 
the  debt  of  another  ;  unless  the  promisor  acquired  what- 
ever was  reliquished  by  the  promisee.  He  added  that 
the  extinguishment  of  the  original  debt  would  also  suffice 
to  take  the  promise  out  of  the  statute.  But  here,  he  said, 
the  plaintiff  did  not  release  Coffin,  or  relinquish  any  lien 
or  benefit,  and  the  consideration  for  the  defendants'  prom- 
ise moved  from  Coffin.  The  exceptions  were  therefore  over- 
ruled. 

§  420.  The  very  recent  case  of  Furbish  v.  Goodnow,  98 
Massachusetts,  296,  A.  D.  2867,  cited  at  length  in  another 
section,  (&)  is  open  to    a    similar  criticism.      The  action 

{h)  See  §§  563,  564. 


Art.  III.]         Collateral  Undertakings.  445 

was  upon  an  agreement,  to  which  the  plaintiff,  liis  debtor, 
and  the  defendant  were  parties,  the  consideration  liaving 
proceeded  from  the  debtor ;  and  the  whole  reasoning  of 
the  court  is  based  upon  the  idea,  that  the  contract  upon 
which  the  action  was  brought  was  made  with  the  plaintiff. 
It  was  said  that  the  recent  decisions  in  New  York, 
Maine  and  Vermont  had  relaxed  the  application  of  the 
statute  too  far ;  and  that,  as  the  authorities  were  conflict- 
ing, it  was  the  duty  of  the  Massachusetts  courts  to  follow 
the  precedents  in  their  own  State.  But  in  the  Massachu- 
setts cases,  which  were  regarded  as  controlling,  the  plaintiff 
sued  upon  a  promise  to  himself ;  and  the  court  expressly 
distinguished  Alger  v.  Scoville,  1  Gray,  391,  (c)  from  the 
others,  on  the  ground  that  there  the  promise  was  to  pay 
a  debt  of  the  promisee,  the  consideration  of  which  was 
a  transfer  of  property  from  him  to  the  promisor.  The 
effect  of  the  statute  of  frauds,  upon  an  action  brought  by 
the  creditor  named  in  such  a  promise,  does  not  therefore 
appear  to  have  been  conclusively  determined  in  that 
State.  (^) 

(c)  See  ante,  §  376. 

(d)  Before  the  case  of  Mellen  v.  Whipple,  67  Massachusetts  (1  Gray),  317, 
A.  D.  1851,  it  was  supposed  that  the  courts  of  Massachusetts  had  gone  at 
least  as  far  as  those  of  New  York,  in  affirming  the  common  law  right  of  the 
beneficiary  to  enforce  a  contract  between  others.  The  result  of  the  cases 
was  summed  up  in  Brewer  v.  Dyer,  61  Massachusetts  (7  Gushing),  337, 
A.  D.  1851,  where  Bigelow,  J.,  said  that  the  principle  had  been  "long 
established  and  clearly  recognized  "  in  that  state  "  that  where  one  person, 
for  a  valuable  consideration,  engages  with  another,  by  simple  contract,  to  do 
some  act  for  the  benefit  of  a  third,  the  latter,  who  would  enjoy  the  benefit 
of  the  act,  may  maintain  an  action  for  the  breach  of  such  engagement," 
citing  Felton  V.  Dickinson,  10  Massachusetts,  287;  Hall  v.  Marston,  17  id., 
575  ;  Arnold  v.  Lyman,  ib.,  400,  and  Carnegie  v.  Morrison,  43  id.  (2  Metcalf), 
381.  He  added,  "it  does  not  rest  on  the  ground  of  any  actual  or  supposed 
relationship  between  the  parties,"  "  nor  upon  the  reason  that  the  defendant 
by  entering  into  such  an  agreement  has  impliedly  made  himself  the  agent 
of  the  plaintiff;"  ''but  on  the  broader  and  more  satisfactory  basis,  that 
the  law,  operating  upon  the  act  of  the  parties,  creates  the  duty,  estab- 
lishes the  privity,  and  implies  the  promise  and  obligation  upon  which  tho 
action  is  founded."  But  in  Mellen  v.  Whipple,  67  Massachusetts, '317,  tho 
court  held,  on  demurrer  to  a  declaration  setting  forth  the  facts  specially,  that 


446  Collateral  Undertakings.  [Ch.  xii. 

§  421.  In  Connecticut  it  has  been  very  distinctly  ruled 
that  the  statute  applies.  In  Clapp  and  others  v.  Lawton 
and  Wright,  31  Connecticut,  95,  A.  D.  1862,  the  declara- 
tion contained  sundry  special  counts,  on  a  promise  of  the 
defendants  to  pay  a  debt  due  to  the  plaintiffs  from  Faulk- 
ner and  Wright,  and  also  a  common  count.  On  the 
trial  it  appeared  that  the  plaintiffs  were  creditors  of  the 
firm  of  Faulkner  &  Wright,  who  sold  out  all  their  firm 


the  plaintiff,  as  the  holder  of  a  negotiable  note  secured  by  a  mortgage  upon 
real  estate,  and  assignee  of  the  mortgage,  could  not  recover  against  the 
grantee  of  the  mortgagor,  who  had  conveyed  the  equity  of  redemption 
to  the  defendant,  by  a  deed  containing  a  stipulation  that  the  defendant  should 
assume  and  cancel  the  note  and  the  moi  tgage.  Metcalf,  J.,  in  delivering  the 
opinion  said  that  the  general  rule  was  that  a  stranger  to  the  consideration 
could  not  sue  upon  a  contract;  and  that  the  only  exceptions  to  the  rule,  which 
hrd  been  recognized  in  Massachusetts,  were  where  the  promisee  had  either 
put  money  or  property  into  the  hands  of  the  promisor  as  a  fund  to  pay  his 
debt;  or  was  nearly  related  to  the  beneficiary;  or  where  the  defendant  had 
entered  under  a  lessee  of  real  property,  upon  a  promise  to  pay  the  rent 
to  the  landlord,  and  had  subsequently  occupied  the  premises,  and  paid 
part  of  the  rent.  It  was  further  held  that  if  tlie  averment  in  the  declara- 
tion, that  the  defendant  promised  the  plaintiff  to  pay  the  note,  was  to  be 
taken  as  referring  to  an  express  promise,  such  a  promise  would  be  void 
for  want  of  consideration.  But  we  find  it  difficult  to  reconcile  the  more 
recent  case  of  Perry  v.  Swasey,  66  Massachusetts  (12  Gushing),  36,  A.  D. 
1853,  with  this  distinction.  There  the  defendant  had  agreed  with  the 
maker  of  a  note  with  whom  he  was  boarding,  to  take  up  and  cancel  the 
note,  for  which  he  was  to  pay  nothing  for  board,  till  his  bill  equalled  the 
sum  due  upon  the  note;  after  boarding  some  time,  his  bill  was  adjusted  and 
receipted  in  full,  the  amount  of  the  note  being  deducted  and  the  balance 
paid  by  him  in  money;  and  at  the  same  time  he  gave  to  the  maker  of  the 
note  a  written  agreement  to  pay  the  note,  and  to  hold  the  maker  harmless. 
Upon  these  facts,  (together  with  a  promise  to  the  holder,)  the  court  "  inclined 
to  the  opinion,"  that  an  action  for  money  had  and  received  would  lie  in  favor 
of  the  holder  of  the  note;  but  it  was  distinctly  held  that  an  action  would  lie 
upon  the  defendant's  promise  to  the  maker ;  and  that  it  raised  an  implied 
promise  to  the  plaintiff.  See  also  Hicock  v.  McKay,  78  Massachusetts  (12 
Gray),  218,  A.  D.  1858,  where  the  same  rule  is  to  be  imphed  from  the  opin- 
ion; although  the  court  thought,  that  in  the  absence  of  evidence  to  show 
that  the  contract  was  made  for  the  benefit  of  the  third  person,  the  promisee 
might  maintain  an  action,  upon  an  agreement  to  credit  a  third  person  a 
certain  sum  on  account,  for  a  consideration  proceeding  from  the  plaintiff. 


Art.  III.]         Collateral  Undertakings.  447 

property  to  the  defendants  Lawton  and  Wright,  (the  same 
Wright  being  a  member  of  both  firms,)  upon  the  consider- 
ation, in  part,  that  the  latter  would  pay  the  debts  of  Faulk- 
ner &  Wright,  including  specially  the  debt  due  to  the 
plaintiffs.  It  appeared  also  that  the  property  transferred 
to  the  defendants,  was  more  than  sufficient  to  pay  all  the 
debts.  The  defendants  objected  to  the  admission  of  the 
testimony  tending  to  prove  these  facts,  on  two  grounds  ; 
namely,  that  the  verbal  promise  was  void  within  the  stat- 
ute of  frauds,  and  that  the  plaintiffs  could  not  sue  upon  it ; 
but  the  objections  were  overruled.  There  was  no  evidence 
of  an  express  assent  by  the  plaintiffs  to  this  arrangement, 
or  that  it  was  communicated  to  them.  The  plaintiffs 
recovered  a  judgment,  which  was  reversed  upon  a  motion 
for  a  new  trial.  The  opinion,  by  Button,  J.,  argued 
both  the  questions  at  length,  and  concluded  that  both 
objections  were  well  taken.  "The  agreement,"  he  said, 
"was  void,  so  far  at  least  as  the  plaintiffs  are  concerned, 
by  the  statute  of  frauds."  It  was,  he  thought,  against  the 
policy  of  the  statute  to  sustain  the  action ;  the  danger, 
which  it  was  intended  to  guard  against,  being  "  that  cred- 
itors will  endeavor  by  false  parol  testimony  to  save  debts, 
which  they  will  otherwise  lose  by  the  failure  of  the  original 
debtor  to  pay."  The  learned  judge  said  that  this  case 
was  precisely  the  case  which  the  legislature  had  in  view ; 
it  being  evident  that  the  plaintiffs  were  endeavoring  to 
hold  Lawton  and  Wright,  because  they  doubted  the 
responsibility  of  Faulkner  and  Wright. 

§  422.  The  learned  judge  then  proceeded  to  consider  the 
arguments  which  had  been  urged  in  support  of  doctrines, 
which  would  permit  a  recovery  upon  this  contract.  In 
some  of  the  cases,  he  said,  a  fear  had  been  expressed  that 
if  the  plaintiff  was  not  allowed  to  recover,  the  statute 
would  be  made  an  instrument  of  fraud.  But  irrespective 
of  the  fact,  that  it  was  inconsistent  to  draw  inferences  from 
a  case  which  the  law  would  not  permit  to  be  proved,  he 
thought  that  the  danger  of  fraud  had  been  overrated  ;  for 
a  defendant  who  denied  the  validity  of  his  agreement  on 


448  Collateral  Undertakings.  [Cli.  xii. 

this  ground  could  not  be  permitted  to  retain  the  consider- 
ation. The  learned  judge  continued :  "Courts  have  also 
frequently  been  misled  by  not  adverting  to  the  distinction 
between  an  attempt  to  hold  a  person  as  surety  for  another, 
and  merely  compelling  him  to  pay  a  sum  of  money  which 
may  happen  to  be  the  debt  of  another.  If  A  eells  a  house 
to  B  for  $100,  it  is  clearly  immaterial  to  B  whether  he  is 
to  pay  the  money  to  A  or  to  one  of  A' s  creditors.  As  a  con- 
tract between  A  and  B,  there  is  no  more  danger  that  the 
fraud  mentioned  in  the  statute  will  be  perpetrated 
than  in  any  other  contract.  But  the  moment  you 
allow  the  creditor  oF  A  to  have  an  interest  in  this  contract, 
and  to  have  the  right,  either  expressly  or  by  implication, 
to  sue  upon  it,  as  the  plaintiffs  claim  to  have  in  this  case, 
the  agreement  is  brought  directly  within  both  the  letter 
and  spirit  of  the  statute."  Some  of  the  cases,  said  the 
learned  judge,  turn  upon  the  question,  whether  the  de- 
fendant received  a  full  consideration;  but  this  cannot 
affect  the  application  of  the  statute.  Others  "seem  to 
have  been  allowed  on  the  ground  that  it  appeared  that 
some  new  and,  distinct  consideration  passed  from  the 
plaintiff  to  the  defendant ; "  but  these  are  mere  extensions 
of  a  doctrine,  to  be  found  in  the  English  lien  cases, 
where  the  substance  of  the  transaction  was  a  sale  by  the 
plaintiff  to  the  defendant.  The  learned  judge  concluded  that 
branch  of  the  opinion  by  saying  that  there  was  a  tendency 
in  recent  cases  "  to  adopt  the  true  rule  and  to  restore  the 
statute  to  its  original  purpose,"  citing  particularly  Curtis 
V.  Brown  and  State  Bank  v.  Mettler.{e) 

(e)  For  an  abstract  of  the  last  mentioned  case  see  section  411.  Upon  the 
other  objection  the  opinion  is  equally  decisive  against  the  plaintiffs;  holding 
that  they  could  not  recover,  because  the  promise  was  not  made  to  the  plaint- 
iffs, or  intended  for  their  benefit,  but  for  the  benefit  of  the  parties  to  it; 
nor  was  it  founded  upon  a  consideration  furnished  by  the  plaintiffs;  nor  did 
it  appear  that  at  the  time  they  knew  any  thing  of  it.  The  case  of  Treat  v. 
Stanton,  14-  Connecticut,  445  (A.  D.  1841),  was  cited  as  decisive  against 
the  plaintiffs  upon  this  point.  And  it  was  held,  that  they  could  not  recover 
upon  the  common  count,  because  there  were  other  persons  interested,  and 
an  accounting  was  necessary ;  so  that  the  only  remedy  was  in  equity. 


Art.  III.]         Collateral  Undertakings.  449 

§  423.  In  Pennsylvania,  the  recent  case  of  Shoemaker 
V.  King^  40  Pennsylvania,  107,  A.  D.  1861,  is  in  exact 
accord  with  the  case  just  cited,  upon  substantially  the 
same  facts.  There  a  special  verdict  was  found,  to  the 
effect  that  the  plaintiff  was  a  creditor  of  the  firm  of 
Harper  and  Reese,  and  they  sold  out  all  their  firm  prop- 
erty to  the  defendant,  he  agreeing  with  them  to  pay  their 
debts,  and  the  property  being  sufficient  to  pay  the  plaint- 
iff and  all  the  other  creditors  of  the  firm.  Soon  afterwards 
Harper  informed  the  plaintiff  of  the  defendant's  promise ; 
but  there  was  no  proof  that  any  communication  passed 
between  the  plaintiff  and  the  defendant,  except  as  implied 
from  bringing  this  suit,  from  which  the  jury  found  "that 
he  agreed  to  accept  said  promise."  Upon  this  verdict  the 
court  below  rendered  a  judgment  for  the  plaintiff,  which 
the  Supreme  Court  reversed  on  error,  and  ordered  judg- 
ment for  the  defendant.  Lowrie,  C.  J.,  delivered  the 
opinion  in  the  following  terms:  "The  decided  weight  of 
authority  and  of  reason  declares,  that  though  such  a  con- 
tract as  the  present  is  valid  between  the  immediate  parties 
to  it,  it  is  void  as  a  contract  in  favor  of  the  creditors  of  one 
of  them ;  unless  they,  as  part  of  the  arrangement,  give 
up  their  original  claims,  and  accept  the  new  contract  in 
their  stead.  Without  this  it  is  void,  even  when  expressly 
made  to  those  creditors,  and  of  course  it  cannot  be  impli^^d 
as  made  to  them.  While  the  old  debt  remains,  the  new 
contract  cannot  be  a  substituted,  but  only  a  collateral  one  ; 
a  promise  to  pay  another' s  debt;  and  it  is  forbidden  by 
the  statute  as  a  cause  of  action."  "  Yet  we  must  not  be 
understood  as  questioning  that  numerous  class  of  cases, 
where  a  debtor  puts  money  or  other  means  in  the  hands 
of  another,  to  be  delivered  to  a  particular  creditor  of  his, 
and  the  creditor  has  been  held  to  be  entitled  to  sue.  Some 
of  this  class  of  cases  no  doubt  crowd  hard  upon  the  class 
to  which  the  present  one  belongs.  Yet  they  present 
merely  a  mode  in  which  the  debtor  pays  his  own  debt. 
That  was  only  in  part  and  incidentally  a  purpose  of  this 
arrangement.  AVe  may  need,  somt^  day,  to  distinguish 
these  classes  more  accurately,  and  we  had  better  not 
57 


450  Collateral  Undertakings.  [Cli.  xii. 

attempt  it,  until  some  case  arises  that  demands  such  a 
distinction."  (/) 

§  424.  The  courts  of  North  Carolina  appear  to  incline 
against  allowing  the  creditor  to  maintain  the  action; 
although  in  the  principal  case  the  question  was  not  fairly 
presented,  as  the  result  would  have  probably  been  the 
same  in  New  York,  upon  the  allegations  of  the  declaration. 
In  Styron  v.  Bell,  8  Jones,  222,  A.  D.  1860,  the  executor 
of  one  Pettijohn  had  sold  at  auction  to  the  defendant, 
a  schooner  belonging  to  the  estate,  at  a  price  much  below 
its  value,  one  of  the  conditions  of  the  sale  being  that  the 
purchaser  should  pay  all  the  debts  due  by  Pettijohn,  on 
the  schooner' s  account ;  and  the  plaintiff,  to  whom  Petti- 
john owed  a  debt  for  lighterage,  brought  this  action  to 
recover  the  same.  It  did  not  appear  that  the  plaintiff 
was  present  at  the  sale  ;  or  that  his  debt  was  specifically 
mentioned  ;  or  that  the  j)laintifF  and  defendant  had  any 
communication  on  the  subject  after  the  sale.  The  defend- 
ant' s  counsel  submitted  that  the  evidence  did  not  sustain 
the  declaration,  which  alleged  that  the  promise  was  made 
to  the  plaintiff,  and  that  the  statute  of  frauds  required 
the  promise  to  be  in  writing  ;  but  the  plaintiff  had  a  ver- 
dict, and  the  judgment  thereon  was  reversed  on  appeal. 
In  the  opinion  of  the  Supreme  Court,  delivered  by  Manly, 
J.,*  it  was  assumed  that  the  question  to  be  decided  was 
whether  there  had  been  any  valid  substitution  of  one 


(/)  But  the  Supreme  Court  of  Pennsylvania  has  now  definitively  settled 
the  rule,  that  where  the  promise  was  made  to  the  creditor,  founded  upon  a 
fund  placed  in  the  hands  of  the  promisor  by  the  debtor,  and  constituting 
part  of  an  agreement  to  which  the  three  were  parties,  the  promise  is  not 
within  the  statute,  and  the  promisee  may  recover  for  its  breach.  See  cases 
cited  in  chapter  fifteenth,  article  third.  And  in  Maule  v.  Bucknell,  50 
Pennsylvania,  39,  A.  D.  1865,  Strong,  J.,  intimated  a  doubt  whether 
Shoemaker  v.  King  was  correctly  decided.  The  question,  respecting  the 
common  law  right  of  the  beneficiary  to  recover  upon  a  contract  to  which  he 
was  not  a  party,  seems  to  have  been  settled  in  Pennsylvania  in  the  affirma- 
tive. Beers  v.  Robinson,  9  Pennsylvania,  229  (1848);  Vincent  v.  Robinson, 
18  id.,  96  (1851). 


Art.  III.]         Collateral  Undertakings.  461 

debtor  for  another.  It  was  held  that  no  such  substitution 
had  been  accomplished  here,  because  the  plaintiff's 
original  debtor  had  not  been  discharged  ;  tliis  action  not 
being  evidence  of  such  a  discharge,  but  only  of  his  willing- 
ness to  look  to  the  defendant,  as  a  collateral  source  from 
which  the  money  might  be  obtained.  It  was  further  said 
that  the  cases,  where  a  promise  to  one  has  been  allowed 
to  enure  to  the  benefit  of  another,  turn  upon  the  idea  of 
principal  and  agent.  The  opinion  concluded  by  saying 
that  the  statute  of  frauds  "would  be  an  obstacle  to  the 
recovery  in  other  points  of  view  ;  but  we  think  it  unneces- 
sary to  enter  upon  that." 

§  425.  In  Tennessee  it  was  held  in  Campbell  y.  Flndley^ 
3  Humphreys,  330,  A.  D.  1842,  that  the  defendant's  prom- 
ise to  the  debtor,  to  pay  to  the  plaintiff  the  debt  due  by  the 
promisee,  made  in  consideration  of  the  sale  of  personal 
property  by  the  debtor,  was  within  the  statute  of  frauds  ; 
the  court  putting  the  decision  on  that  ground,  and,  declin- 
ing to  consider  the  question,  whether  there  was  sufficient 
privity  on  the  part  of  the  plaintiff  to  entitle  him  to  sue. 
But  the  case  is  avowedly  at  war  with  the  whole  doctrine 
that  a  promise  to  the  debtor  is  not  within  the  statute  ;  as 
we  conceive  the  other  cases,  holding  that  the  statute  applies 
to  such  an  action,  are  in  principle  and  practical  effect,  {g) 

§  426.  And  in  Wisconsin  the  Supreme  Court  decided, 
or  at  least  intimated  very  strongly,  in  EviericJc  v.  Sanders, 
1  Wisconsin,  77,  A.  D.  1853,  that  a  creditor  could  not 
recover  under  the  same  circumstances  ;  and  for  that  reason, 
with  others,  held  that  a  subsequent  promise  to  him  was 
within  the  statute  of  frauds.  The  case  will  be  cited  more 
at  length  hereafter,  in  connection  with  another  principle 
Involved  therein.  (7i) 

(gr)  There  is  a  dictum  in  Brice  v.  King,  1  Head,  152  (A.  D.  1858),  favoring 
the  broad  rule,  that  at  common  law  the  person  to  be  benefited  by  a  contract 
may  sue  for  its  breach. 

(A)  Chapter  fifteenth,  article  second. 


CHAPTER   THIRTEENTH. 

THE  SAME  SUBJECT  CONTINUED  —  THE  KULE  WITH  EESPECT 
TO  CONTRACTS  OF  INDEMNITY,  AGAINST  LIABILITIES 
THEREAFTER  TO   BE  INCURRED   BY  THE  PROMISEE. 


§  427.  It  is  frequently  said,  in  general  terms,  that  one 
of  the  questions  arising  under  the  statute  of  frauds,  which 
are  yet  unsettled  by  the  authorities,  is  whether  contracts 
of  indemnity  are  within  its  provisions ;  but  the  promises 
involved  in  most  of  the  cases  considered  in  the  eleventh 
chapter,  were  contracts  of  indemnity,  in  the  broadest  sense 
of  the  term.  They  differ  from  those  which  are  now  to  be 
examined  in  nothing,  except  that  the  question  there  pre- 
sented arose  upon  a  promise  to  assume  a  liability  already 
resting  upon  the  promisee,  which  for  that  reason  required 
a  new  and  distinct  consideration,  in  order  to  be  valid  at 
common  law.  In  those  which  will  form  the  subject  of  this 
chapter,  the  promise  was  to  indemnify  the  promisee  against 
a  liability  thereafter  to  be  incurred  by  him  ;  and  it  conse- 
quently required  no  consideration  to  sustain  it  at  common 
law,  beyond  the  incurring  of  the  liability,  pursuant  to  the 
request  of  the  promisor.  They  are  divided  into  two 
classes,  namely,  those  where  the  liability,  against  which 
the  promisee  was  indemnified,  was  to  be  incurred  by  him 
without  the  intervention  of  any  third  person,  who  could  be 
said  to  be  primarily  liable  ;  and  those  where  it  was  to  be 
incurred  by  him,  at  the  request  of  the  promisor,  but  as 
security  for  the  fulfilmeUt  of  a  third  person' s  engagement 
to  a  fourth  person.  The  "authorities  seem  to  agree  that  in 
the  first  class  the  promise  is  not  within  the  statute  ;  but  we 
shall  find  that  with  respect  to  the  second,  there  is  great 
diversity  of  opinion. 


Art.  I.]  Collateral  U^"DERTAKINGS.  453 


ARTICLE  I. 

Where  the  promise  vu  to  indemmfy  the  promisee  against  a  liability  to  be  Incorred  by  him  alone 
without  the  intervention  of  any  third  person, 

§  428.  With  respect  to  this  kind  of  indemnity,  there  is 
little  difficulty  in  ascertaining  and  applying  the  correct 
rule.  Promises  of  this  character  come  directly  within  the 
terms  of  the  rule,  sustaining  verbal  engagements  made  to 
the  debtor  himself;  there  being  no  question,  such  as  arises 
in  those  belonging  to  the  other  class,  whether  the  exist- 
ence of  a  primary  liability  of  another,  for  the  payment  of 
the  same  debt  or  the  fulfilment  of  the  same  duty,  will  not 
render  the  engagement  collateral.  And  accordingly  we 
find  that  the  few  decisions,  which  cast  a  doubt  upon  the 
validity  of  siich  contracts,  are  contained  in  the  overruled 
cases,  which  deny  the  existence  of  the  fifth  rule ;  .or  were 
evidently  made  through  inadvertence,  (a) 

§  429.  In  Howes  v.  Martin,  1  Espinasse,  162,  tried  at 
nisi  prius,  A.  D.  1794,  such  an  engagement  was  held  not 
to  be  within  the  statute,  although  the  court  failed  to  assign 
the  reason  therefor  which  is  now  regarded  as  the  correct 
one.  There  the  declaration  was  for  money  laid  out  and 
expended  to  the  defendant' s  use,  with  the  common  counts  ; 
and  at  the  trial  it  appeared  that  the  plaintiff  had  accejoted 
a  certain  bill  for  the  accommodation  of  the  defendant ;  and 
an  action  having  been  brought  against  her  upon  the 
acceptance,  she  informed  the  defendant  of  the  fact,  and 
at  his  request  defended  the  action,  but  was  defeated  ;  and 
this  action  was  brought  to  recover  the  amount  of  the 
verdict  against  her,  and  the  costs.  The  defendant's  coun- 
sel objected  that  the  action  could  not  be  maintained,  as 
there  was  no  note  in  writing ;  but  Lord  Kenyon  overruled 

(a)  One  of  the  reasons  assigned  by  the  court  for  the  decision  in  "Wells  v. 
Mann,  52  Barbour  (N.  T.),  263,  A.  D.  18G7,  was  that  a  promise  by  the 
defendant  to  the  plaiiitiOf  to  indemnify  him  njrainst  nn  action  to  be  com- 
menced by  another  person,  was  witiiin  the  statute;  but  this  was  said  inci- 
dentally,  and,  it  is  believed,  inadvertently. 


454  COLLATEKAL   UNDERTAKINGS.  [Cll.  XIII. 

the  objection,  and  held  that  the  case  was  not  within  the 
statute,  because  the  plaintiff  had  no  consideration  for  the 
acceptance,  and  the  defence  to  the  action  was  on  the 
defendant's  account  and  for  his  benefit;  that  as  he  was 
interested,  and  directed  the  defence  to  be  made,  whereby 
he  might  have  been  benefited,  the  money  must  be  con- 
sidered as  having  been  laid  out  by  the  plaintifi'  to  his  use 
and  upon  his  account. 

§  430.  But  in  Winckworth  v.  Mills,  2  Espinasse,  484, 
A.  D.  1796,  the  question  was  squarely  presented,  and 
decided  erroneously,  according  to  the  modern  author- 
ities. There  one  Sharp  had  made  a  promissory  note  to 
the  order  of  Taylor  and  Son,  payable  at  their  house,  which 
had  been  indorsed  by  Taylor  and  Son  to  the  defendant, 
and  by  him  to  another  person,  who  had  indorsed  it  to  the 
plaintiff.  When  it  became  due,  the  plaintiff' s  clerk  called 
at  the  house  of  Taylor  and  Son  for  payment,  but  by  mis- 
take left  the  note  behind,  and  on  his  returning,  and 
demanding  it,  they  denied  having  it,  and  it  was  lost ; 
thereupon  the  plaintiff  immediately  informed  the  defend- 
ant of  the  facts,  who  furnished  the  plaintiff  with  a  copy  of 
the  note,  and  promised  to  indemnify  him,  if  he  would 
endeavor  to  recover  the  amount  of  it  from  Taylor  and 
Son,  or  the  maker.  The  plaintiff  succeeded  in  collecting 
one-half  of  the  amount,  and  now  brought  an  action  to 
recover  the  expenses,  adding  a  count  against  the  defend- 
ant as  indorser  of  the  note.  At  the  trial,  there  being  no 
writing  showing  the  promise.  Lord  Kenyon  ruled  that  the 
plaintiff  could  recover  only  the  unpaid  part  of  the  note, 
and  a  verdict  was  taken  for  that  amount.  The  report 
adds  that  his  Lordship  offered  to  save  the  point ;  but  the 
plaintiff's  counsel  declined  it,  and  the  verdict  was  "ac- 
quiesced in." 

§  431.  But  in  Adams  v.  Dansey,  6  Bingham,  506,  and 
4  Moore  and  Payne,  245,  decided  A.  D.  1830,  the  Court  of 
Common  Pleas  anticipated  the  decision  of  the  King's 
Bench  in  Eastwood  v.  Kenyon,  11  Adolphus  and  Ellis, 


Art.  I.]  Collateral  Undertakings.  460 

438,  by  holding  that  a  similar  promise  was  not  within  the 
statute,  for  the  reason  that  it  was  made  to  the  person  who 
was  to  incur  the  liability  ;  and  further  that,  under  the  cir- 
cumstances of  the  case,  the  promise  was  also  valid,  with 
respect  to  a  liability  which  had  been  previously  incurred. 
There  the  plaintiff,  as  the  occupant  of  lands  in  a  certain 
parish,  had  been  sued  by  the  vicar  for  tithes  ;  and  the 
landowners  of  the  parish,  relying  on  a  modus,  resolved 
that  they  would  contribute  pro  rata  to  the  defence  of  the 
suit ;  but  the  plaintiff  refused  to  defend,  as  he  had  quitted 
the  parish ;  whereupon  the  defendant,  who  was  a  land- 
owner of  the  parish,  orally  promised  to  indemnify  him. 
The  plaintiff,  relying  upon  this  promise,  defended  the  suit 
accordingly  ;  and  now  brought  this  action  to  recover  the 
costs  adjudged  against  him  therein,  part  of  which  had 
been  incurred  before  the  defendant's  promise  was  made. 
There  was  a  verdict  for.  the  plaintiff,  and  the  defendant 
obtained  a  rule  nisi  to  set  aside  the  verdict,  or  to  reduce 
the  damages  to  the  amount  of  costs  incurred  subsequently 
to  the  promise,  which,  after  argument,  was  discharged. 

§432.  Tindal,  C.  J.,  said:  "Here,  as  between  Adams 
and  Dansey,  what  promise  is  there  as  to  the  debt,  default 
or  miscarriage  pf  another  ?  It  is  a  direct  promise  to  repay 
Adams  any  money  which  might  be  paid  by  him,  for  costs 
in  the  suit  between  the  vicar  and  Adams."  .As  to  the 
costs  previously  incurred,  he  said  that  it  was  competent 
for  the  plaintiff  to  make  any  bargain  he  pleased,  as  the 
price  of  resisting  the  tithes  suit  for  the  defendant's  benefit. 
Gaselee,  J.,  said,  "It  is  a  liability  to  which  the  plaintiff 
himself  was  to  be  exposed  at  the  request  of  the  defend- 
ant," and  as  to  the  bygone  costs  the  vicar  s  claim  had 
been  resisted  at  the  instance  of  the  defendant,  and  the 
plaintiff  was  then  liable  for  them.  Bosanquet,  J. ,  said  that 
the  plaintiff  "  was  at  liberty  to  impose  such  terms  as  he 
pleased,  either  as  to  the  past  or  the  future  costs,  and  the 
debt,  for  the  discharge  of  which  he  stipulated,  was  his 
own  debt,  not  that  of  a  third  person." 


466  Collateral  Undeuta kijs^gs.         [Cb.  xiii, 

§  433.  The  same  decision  was  made  A.  D.  1800,  by  the 
New  York  Supreme  Court  in  Allaire  v.  Ouland,  2  John- 
son's  Cases,  52.  There  the  defendant  had  directed  the 
plaintiff,  who  was  his  hired  servant,  to  enter  a  meadow, 
which  the  plaintiff  said  belonged  to  him,  but  which 
was  in  fact  the  property  of  another,  and  promised  to 
indemnify  him  for  so  doing ;  and  the  plaintiff,  having 
done  so,  was  sued  for  the  trespass,  and  a  judgment  recov- 
ered against  him  ;  whereupon  he  brought  this  action  upon 
the  defendant' s  promise.  In  the  court  below  a  motion  for 
a  nonsuit  was  overruled;  and  the  plaintiff  having  had  a 
verdict  and  judgment,  a  writ  of  error  was  brought  from 
the  judgment  to  the  Supreme  Court,  seven  errors  having 
been  assigned  by  the  defendant,  of  which  the  second  was 
that  the  promise  of  indemnity  should  have  been  in  writing, 
it  being  for  the  default  of  another.  The  judgment  below 
was  affirmed,  the  second  error  assigned  being  disposed  of 
in  the  prevailing  opinion,  delivered  by  Radcliff,  J.,  as  fol- 
lows :  "  The  promise  was  not  to  indemnify  for  the  default 
of  another  ;  but  was  made  to  the  plaintiff  himself,  for  an 
act  to  be  done  by  him  as  the  servant  of  the  defendant 
below.  It  was  an  original  undertaking,  and  not  a  collat- 
eral promise." 

§  434.  So  in  Marcy  v.  Craioford,  16  Connecticut,  649, 
A.  D.  1844,  it  appeared  at  the  trial  in  the  court  below,  that 
the  defendant  had  entered  into  a  verbal  agreement  with 
the  plaintiff,  that  if  one  S.  P.  C.  should  enter  upon  certain 
lands,  and  fish  in  a  certain  mill  pond,  and  should  be  prose- 
cuted therefor  by  J.  C,  who  had  forbidden  such  entry 
and  fishing,  he  (the  defendant)  would  pay  the  plaintiff 
one  half  the  amount  which  J.  C.  should  recover,  and  one 
half  the  expenses  of  defending  the  suit ;  and  the  plaintiff 
had  made  a  corresponding  contract  with  the  defendant,  in 
case  the  latter  should  in  like  manner  enter  and  fish.  The 
defendant  insisted,  with  other  objections  to  the  recovery,  that 
the  promise  was  within  the  statute  ;  but  under  the  ruling  of 
the  court,  the  plaintiff  had  a  verdict  and  judgment,  which 
was  affirmed  on  error.    Hinman,  J.,  delivering  the  opin- 


Art.  I.]  Collateral  Undertakings.  457 

ion  of  the  court,  said,  upon  this  point,  that  the  promise 
was  original.  "It  could  not  be,"  he  continued,  "for 
the  debt  of  S.  P.  C. ;  for  he  owed  none.  It  was  not  for  his 
default ;  but  was  rather  a  promise  of  indemnity,  to  a  certain 
extent,  for  doing  a  particular  act,  like  the  promise  of 
indemnity  to  an  officer  taking  property,  which  it  may  be 
doubted  whether  the  creditor  can  hold." 

§  435.  So  in  Feck  v.  F.  W.  Tliompson  and  C.  Thomp- 
son, 15  Vermont,  637,  A.  D.  1843,  the  defendant  F.  W. 
Thompson  had  given  the  plaintiff  a  verbal  order  on  one 
Campbell,  to  pay  the  plaintiff  $88,  upon  a  settlement  of  a 
debt  which  he  owed  to  the  plaintiff;  but  Campbell  refused 
to  pay  the  money  without  a  written  order,  unless  the 
plaintiff  would  give  his  individual  receipt  for  the  money, 
to  be  accounted  for  to  Campbell  on  demand ;  which  the 
plaintiff  gave  accordingly  ;  subsequently  Campbell  threat- 
ened to  sue  the  plaintiff  on  his  receipt,  and  the  latter  noti- 
fied the  defendant  F.  W.  Thompson  of  this  threat ;  and  he 
and  his  father,  the  defendant  Charles  Thompson,  both 
promised  the  plaintiff,  that  if  he  would  defend  the  suit, 
they  would  save  him  harmless  from  all  damages  and  costs. 
The  plaintiff"  thereupon  defended  the  suit,  which  resulted 
in  a  judgment  against  him ;  and  he  then  brought  this 
action  on  the  defendants'  promise.  It  was  objected  that 
the  promise  was  void  against  Charles  Tliompson ;  but  the 
plaintiff  had  a  verdict,  and  the  judgment  thereon  was 
affirmed.  The  court  held  that  the  promise  was  not  within 
the  statute,  on  the  ground  that  the  agreement  did  not 
immediately  relate  to  any  debt  which  F.  W.  Thompson 
owed  to  the  plaintiff ;  but  to  a  disputed  claim  against  the 
plaintiff  asserted  by  Campbell,  who  was  a  stranger  to  the 
consideration  and  to  the  agreement ;  both  of  which  origin- 
ated entirely  between  the  present  parties, 

§  436.  The  same  rule  was  followed,  with  but  little  variety 

•as  to  the  facts,  in  Goodspeed  v.  F idler,  46  Maine,  141, 

A.  D.  1858 ;  Flemm  v.  WJiUmore,  23  Missouri,  430,  A.  D. 

1856,  and  Dorwin  v.  Smith,  35  Vermont,  69,  A.  D.  1862. 

58 


458  Collateral  Undertakin-qs.         [Ch.  xiii. 

In  Stark  v.  Raney,  18  California,  622,  A.  D.  1861,  it  was 
held  that  a  verbal  promise,  by  the  plaintiff  in  an  execu- 
tion, to  indemnify  a  sheriff  for  seizing  property  claimed 
by  another,  was  not  within  the  statute ;  and  in  Tarr  v. 
NortJiey,  17  Maine,  113,  A.  D.  1840,  a  similar  promise  by 
a  stranger  was  sustained,  although  the  plaintiff  in  the 
execution  also  joined  in  the  request  to  the  officer ;  it 
appearing  that  the  latter  was  not  satisfied  with  the  plaint- 
iff's  ability  to  indemnify  him,  and  refused  to  levy  upon 
the  property  without  the  defendant's  promise  of  in- 
demnity. 

§  437.  But  a  promise  of  indemnity  cannot  be  made  the 
medium  of  saving  from  the  operation  of  the  statute,  an 
engagement  of  the  promisor  to  respond  for  an  existing  lia- 
bility of  a  third  person  to  the  promisee ;  as  where  the 
promisee  has  a  demand  against  a  third  person,  and  the 
promisor  engages  to  pay  the  same,  as  distinguished 
from  the  expenses  of  the  litigation ;  in  case  the  promisee 
shall  fail  in  an  attempt  to  recover  the  amount  from  a 
fourth  person.  This  was  held,  and  very  properly,  in  Tur- 
ner V.  Hiihhell,  2  Day  (Connecticut),  457,  decided  A.  D. 
1807.  There  the  declaration  alleged,  in  substance,  that 
the  defendant's  son  had  received  on  board  a  vessel  at 
Newbern,  of  which  he  was  commander,  certain  merchan- 
dise of  the  plaintiff  to  be  transported  to  New  York,  and 
that  he  had  sold  and  converted  it  to  his  own  use  ;  that  on 
the  plaintiff  proposing  to  institute  a  suit  against  the  son, 
the  defendant  requested  him  to  forbear  doing  so,  and  to 
sue  one  Selby  therefor,  who,  as  the  defendant  alleged,  was 
equally  concerned  in  the  conversion  of  the  goods,  and  had 
received  the  proceeds  ;  and  in  consideration  that  he  would 
do  so,  promised  that  he  would  pay  the  damages  so  sus- 
tained by  the  plaintiff,  in  case  he  should  fail  in  the  suit 
against  Selby,  or  be  unable  to  collect  a  judgmejit  against 
him  ;  and  that  the  plaintiff  accordingly  sued  Selby,  but 
was  defeated.  At  the  trial  the  plaintiff  offered  to  prove 
a  verbal  promise  as  laid  in  the  declaration,  which  was 
ruled  out,  as  being  within  the  statute  of  frauds  j  and  a 


Art.  II.]  Collateral  Undertakings.  459 

verdict  having  been  rendered  for  the  defendant,  the 
plaintiff  brought  error  on  the  judgment.  In  the  Supreme 
Court  of  Errors  the  judgment  was  unanimously  affirmed, 
no  opinion  having  been  delivered. 


ARTICLE  11. 

Where  the  promise  was  to  indemnify  the  promisee  against  a  liability  to  be  incurred  by  him,  at 
the  request  of  the  promisor  only)  but  as  security  for  the  fulfilment  of  a  third  person's 
engagement  to  a  fourth. 

§  438.  Where  one  person  becomes  a  surety  for  another, 
at  the  latter' s  request,  and  for  his  benefit,  the  request 
necessarily  implies  a  promise  of  indemnity ;  and  if  another 
person  unites  with  the  first  in  the  request,  and  makes  an 
express  promise  to  indemnify  the  surety,  his  promise 
must  necessarily  be  within  the  statute,  as  being  collateral 
to  the  implied  promise  of  the  principal.  Of  course  the 
case  is  still  stronger,  if  the  principal  has  also  made  an 
express  promise.  But  it  frequently  happens  that  he  who 
is  primarily  bound  in  an  undertaking,  for  his  fulfilment 
whereof  another  person  has  also  become  liable,  was  not  a 
party  to  the  transaction  wherein  the  latter  was  induced  to 
assume  the  liability ;  but  that  such  consent  was  given 
solely  upon  the  faith  of  an  express  promise  of  a  stranger 
to  the  undertaking,  that  he  would  indemnify  the  surety. 
Whether  a  verbal  promise  of  the  indemnitor  is,  in  such  a 
case,  within  the  statute,  is  a  question  upon  which  the 
authorities  are  very  confused  and  discordant.  On  the 
one  hand  it  is  argued,  that  as  it  is  the  duty  of  every  prin- 
cipal to  protect  his  surety  against  loss,  the  promisor's 
contract  is  by  its  terms  to  answer  for  the  default  or  mis- 
carriage of  another.  And  again  it  is  said  that  inasmuch 
as  the  law  always  implies  an  undertaking,  on  the  part  of 
every  principal,  to  indemnify  his  surety,  the  engagement 
of  another  to  indemnify  him  also  is  necessarily  concurrent 
with,  and  collateral  to  an  engagement  of  the  person 
primarily  bound  upon  the  undertaking ;  which  the  law 
implies,  if  no  express  engagement  to  that  effect  has  been 
made. 


460  Collateral  Undertakings.         [Ch.  xiii. 

§  439.  On  the  other  hand  it  is  insisted,  that  in  the  absence 
of  any  request  on  the  part  of  the  third  person  to  the 
promisee,  that  the  latter  would  enter  into  the  undertaking 
for  his  benefit,  he  is  to  be  regarded  as  simply  assenting  to 
the  transaction,  not  as  entering  into  any  engagement  with 
respect  thereto  ;  so  that  in  case  the  promisee  shall  be  there- 
after called  upon  to  make  good  his  undertaking,  the  third 
person's  liability  to  him  does  not  grow  out  of  any  implied 
promise,  made  at  the  time  when  the  principal  contract 
was  entered  into  ;  but  out  of  the  actual  payment  by  him 
of  the  damages  which  he  has  become  liable  to  pay.  Such 
payment,  it  is  conceded,  raises  an  implied  assumpsit, 
upon  which  the  surety  is  entitled  to  recover ;  but  it  is 
contended  that  the  principal' s  liability  to  an  action  flows 
from  a  fact,  existing  subsequent  in  time  to  the  engagement 
of  the  promisor ;  so  that  such  engagement  is  not  within 
the  statute,  upon  the  principle  that  a  contingency  arising 
after  the  promise  was  made,  will  not  suffice  to  draw  it 
within  the  statute,  if  it  was  not  so  at  the  time  when  it  was 
entered  into,  (a)  With  respect  to  the  suggestion  that  the 
engagement  is  to  respond  for  the  miscarriage  or  default 
of  the  third  person,  it  is  further  said  that  the  default, 
against  which  the  promisee  is  indemnified,  is  not  a  default 
in  a  duty  to  him,  but  to  the  fourth  person ;  and  therefore 
the  promise  is  good  without  writing,  within  the  rule  which 
excludes  from  the  operation  of  the  statute,  promises  not 
made  to  the  person  entitled  to  enforce  the  liability  assumed 
by  the  promisor. 

§  440.  This  contradiction  in  the  cases  upon  this  import' 
ant  question,  had  its  origin  in  England,  where  the  courts 
have  vacillated  between  the  two  lines  of  argument,  thereby 
causing  a  corresponding  vacillation  in  the  decisions  in  the 
United  States ;  as  will  be  apparent  by  a  comparison  of 
dates  between  the  English  and  American  cases.  In 
Thomas  v.  Cook^  8  Barnewall  and  Cresswell,  728,  decided 


(a)  Section  152. 


Art,  II.]  Collateral  Undertakings.  461 

A.  D.  1828, (^)  the  Court  of  King's  Bench  sustained,  as  not 
being  within  the  statute,  a  promise  made  by  one  of  two 
persons  about  to  become  sureties  for  a  third,  that  he 
would  indemnify  his  fellow  surety  against  loss.  There 
the  first  three  counts  of  the  declaration,  wliich  were  in 
substance  the  same,  stated  that  one  Cook,  since  deceased, 
had  been  in  partnership  with  one  Morris  ;  and  upon  dis- 
solving the  firm  it  was  agreed  between  them,  that  Cook 
should  indemnify  Morris  against  the  debts  of  the  firm,  by 
a  bond  executed  by  himself  and  two  other  persons  ;  and 
in  consideration  that  the  plaintiff,  at  the  defendant's 
request,  would  execute  such  a  bond  with  the  defendant 
and  Cook,  the  defendant  undertook  to  indemnify  him 
against  so  doing  ;  concluding  with  averments  of  a  breach, 
damages,  etc.  The  fourth  count  of  the  declaration  stated, 
that  in  consideration  that  the  defendant,  and  Cook,  with 
the  plaintiff  as  Cook' s  surety,  would  together  draw  a  bill 
of  exchange  upon  certain  other  persons,  and  indorse  and 
deliver  it  to  Morris,  to  be  negotiated  for  his  own  use,  the 
defendant  likewise  undertook  to  indemnify  him  ;  averring 
also  a  breach  and  damages.  The  declaration  also  con- 
tained the  general  counts.  At  the  trial  the  plaintiff  proved 
the  execution  of  the  bond  and  of  the  bill  at  the  defendant' s 
request,  and  a  verbal  promise  of  indemnity  by  the  defend- 
ant ;  and  also  various  payments  by  the  plaintiff  on  account 
of  the  debts  and  the  bill  of  exchange,  the  amount  of  wliich 
was  reduced  by  moneys  received  from  the  estate  of  Cook 
to  300^,  /  and  the  defendant  objecting  that  the  promise 
was  within  the  statute,  and  that  he  was  liable  only  for  con- 
tribution as  a  co-surety,  the  plaintiff  had  a  verdict  for  'SOOl. 
with  leave  to  the  defendant  to  move  to  reduce  it  to  150Z. 

§  441.  A  rule  nisi  was  accordingly  obtained,  which  after 
argument  was  discharged,  Bayley,  J.,  saying:   "Here the 

(h)  S.  C,  3  Manninf;^  .ind  Ryland,  444.  This  report  states  tlint  Littledale, 
J.,  concurred  in  the  decision ;  but  tlie  report  in  8  B.irnewail  and  Crcsswell 
states  that  he  was  absent.  Lord  Denman,  in  the  next  case,  assumed  that 
this  judgment  was  pronounced  by  two  judges  only. 


462  Collateral  Undertakings.        [Ch.  xiii. 

bond  was  given  to  Morris  as  the  creditor  ;  but  the  promise 
in  question  was  not  made  to  him.  A  promise  to  him 
would  have  been  to  answer  for  the  default  of  the  debtor. 
But  it  being  necessary  for  W.  Cook,  since  deceased,  to  find 
sureties,  the  defendant  applied  to  the  plaintifi"  to  join  him 
In  the  bond  and  bill  of  exchange,  and  undertook  to  save 
him  harmless.  A  promise  to  indemnify  does  not,  as  it 
appears  to  me,  fall  within  either  the  words  or  the  policy 
of  the  statute  of  frauds ;  and  if  so,  there  was  sufficient 
evidence  to  entitle  the  plaintiff  to  a  verdict  for  300Z." 
Parke,  J.,  said  :  "This  was  not  a  promise  to  answer  for 
the  debt,  default  or  miscarriage  of  another  person,  but  an 
original  contract  between  these  parties,  that  the  plaintiff 
should  be  indemnified  against  the  bond.  If  the  plaintiff, 
at  the  request  of  the  defendant,  had  paid  money  to  a  third 
person,  a  promise  to  repay  it  need  not  have  been  in  writing, 
and  this  case  is  in  substance  the  same.  The  rule  for 
ceducing  the  verdict  ought  therefore  to  be  discharged." 

§  442.  But  in  1839  the  same  court,  in  Green  v.  Cresswelly 
10  Adolphus  and  Ellis,  453,  (c)  made  a  decision  which  was 
certainly  intended  to  overrule  the  case  of  Thomas  v.  CooJc^ 
and  has  generally  been  regarded  as  having  had  that  effect. 
There  the  declaration  stated  that  John  Reay  had  sued 
Joseph  Hadley  by  capias,  on  which  Hadley  had  been 
arrested ;  and  in  consideration  that  the  plaintiff,  at  the 
request  of  the  defendant,  would  become  bail  for  Hadley 
upon  the  capias,  the  defendant  promised  to  indemnify 
him ;  but  Hadley  did  not  put  in  special  bail,  whereby, 
etc.  At  the  trial  the  plaintiff  had  a  verdict ;  but,  as  the 
pleadings  showed  that  the  promise  was  verbal,  a  rule  nisi 
to  arrest  the  judgment  was  obtained,  which  the  court,  after 
argument,  made  absolute.  Lord  Denman,  C.  J.,  who 
delivered  the  opinion  of  the  court,  said:  "The  promise 
in  effect  is,  '  If  you  will  become  bail  for  Hadley,  and 
Hadley,  by  not  paying  or  appearing,  forfeits  his  bail  bond, 
I  will  save  you  harmless  from  all  the  consequences  of  your 

(c)  S.  C,  2  Perry  and  Davison,  430,  and  4  Jurist.  169. 


Art.  II.]  Collateral  Undertakings.  463 

becoming  bail.  If  Hadley  fails  to  do  what  is  right  towards 
you,  I  will  do  it  instead  of  him.'  If  there  had  been  no  decis- 
ions on  the  subject,  it  would  appear  impossible  to  make  a 
reasonable  doubt  that  this  is  answering  for  the  default 
of  another." 

§  443.  His  Lordship  then  referred  to  Thomas  v.  Coolc, 
and  added:  "But  the  reasoning  in  this  case  does  not 
appear  to  us  satisfactory  in  support  of  the  doctrine  there 
laid  down ;  which,  taken  in  its  full  extent,  would  repeal 
the  statute.  For  every  promise  to  become  answerable  for 
the  debt  or  default'  of  another  may  be  shaped  as  an  indem- 
nity ;  but,  even  in  that  shape,  we  cannot  see  why  it  may 
not  be  within  the  words  of  the  statute.  Within  the  mis- 
chief of  the  statute  it  most  certainly  falls."  "A  distinction," 
continued  his  Lordship,  "was  also  hinted  at,  from  the 
circumstance  of  Hadley' s  debt  being  due  to  a  third  person, 
and  the  default  therefor  incurred  towards  him,  not 
towards  the  bail.  But  here  again  is  the  surmise  of  an 
intention  in  the  legislature  which  none  of  its  language 
bears  out ;  and  besides,  may  it  not  be  said  that  the  arrested 
debtor,  who  obtains  his  freedom  by  being  bailed,  under- 
takes to  his  bail  to  keep  them  harmless,  by  paying  tlie 
debt  or  surrendering?  There  does  not  appear  any  objec- 
tions to  the  test  laid  down  in  the  note  to  1  Williams's 
Saunders,  211  c ;  and  it  is  decisive  in  favor  of  the  ob- 
jection. The  original  party  remained  liable,  and  tlio 
defendant  incurred  no  liability  except  from  his  promise." 

§  444.  In  Reader  v.  King7iam,{d)  and  in  Fitzgerald  v. 
Dressier ^{e)  as  well  as  in  the  two  cases  which  will  be  next 
cited,  to  complete  the  English  decisions  upon  this  point, 
the  soundness  of  the  decision  in  Oreen  v.  Cressioell  is 
much  questioned  ;  and  it  must  be  regarded,  in  the  present 
state  of  the  cases,  as  of  very  doubtful  authority  in  Eng- 
land. But  in  the  United  States,  it  has  had  the  effect  of 
unsettling  entirely  the  law  upon  this  question. 

((f)  Ante,  §§  367,  368. 
(e)  Post,  §§  590,  591. 


464  Collateral  Undertakings.  [Ch,  xiii. 

§  445.  In  a  recent  case  in  the  Exchequer,  Batson  v. 
King,  4  Hurlstone  and  Norman,  739,  A.  D.  1859,  (/)  the 
defendant  and  one  Dalton,  desiring,  (as  was  found  by  the 
jury,)  to  raise  money  for  their  joint  benefit,  applied  to  the 
plaintiff  to  draw  a  bill  upon  Dalton,  to  be  accepted  by 
him  and  indorsed  by  the  defendant ;  and  the  plaintiff 
did  so,  upon  the  defendant's  agreement  that  he  should  not 
be  called  upon  to  pay  ;  but  when  the  bill  became  due 
the  plaintiff  was  compelled  to  pay  it;  whereupon  he 
brought  this  action  for  money  paid,  and  had  a  verdict 
for  the  whole  amount.  Upon  an  application  for  a  rule 
to  reduce  the  verdict  by  one-half,  on  the  ground  that 
the  promise  was  within  the  statute.  Pollock,  C.  B.,  said: 
"If  a  man  says  to  another,  'If  you  will,  at  my  request, 
put  your  name  to  a  bill  of  exchange,  I  will  save  you  harm- 
less,' that  is  not  within  the  statute.  It  is  not  a  responsi- 
bility for  a  debt  of  another.  It  amounts  to  a  contract  by 
one,  that  if  the  other  will  put  himself  in  a  certain  situa- 
tion, the  first  will  indemnify  him  against  the  consequences. 
In  Green  v.  Cressioell,  Lord  Denman  pointed  out  a  dis- 
tinction between  that  case,  and  one  where  the  defendant  is  a 
co-surety,  (p')  I  do  not  think  that  the  case  itself  was  rightly 
decided."  And  Martin,  B.,  immediately  added:  "If  the 
argument  for  the  defendant  were  well  founded  it  would 
apply  to  all  cases  of  joint  suretyship." 


§  446.  But  a  rule  nisi  was  nevertheless  granted ;  and 
counsel  having  been  heard  in  support  of  it,  the  rule  was 
discharged.  The  court  held  that  although  as  between  the 
holder  and  the  parties  to  the  bill,  the  acceptor  was  prima- 
rily liable,  yet  as  between  themselves,  the  real  nature  of 
the  transaction  might  be  shown  ;  and  it  appeared  here 
that  in  reality  Dalton  and  the  defendant  were  principals, 
so  that  the  point  decided  in  Green  v.  Cresswell  did  not 


(/)  S.  C,  28  Law  Journal,  .New  Series,  Exchequer,  327. 

(</)  The  learned  Chief  Baron  doubtless  referred  to  a  remark  of  Patterson,  J., 
during  the  argument,  which  is  also  mentioned  by  Denio,  J.,  in  his  opinion  in 
Barry  v.  Ransom,  12  New  York,  462,  cited  post,  §  453,  454. 


Art.  II.]  Collateral  Undertakings.  465 

arise.  "It  miglit  have  been  otherwise,"  said  Martin,  B., 
"if  Dalton.  had  been  entirely  separate  from  the  defendant, 
and  if  the  plaintiff  had  become  responsible  for  Dalton, 
upon  the  defendant's  promise  to  indemnify  him.  Dalton 
and  the  defendant  being  both  principals,  the  only  answer 
which  the  defendant  had  was  by  plea  in  abatement  for  the 
nonjoinder  of  Dalton."  The  other  Barons  concurred  in 
this  opinion. 

§  447.  In  the  still  more  recent  case  of  Cripps  v.  Ilart- 
noll^  8  Jurist  New  Series,  1010,  (7^)  decided  in  the  year 
1862  in  the  Queen' s  Bench,  a  distinction  was  taken,  between 
a  promise  to  indemnify  bail  in  a  civil,  and  in  a  criminal 
cause,  which  is  apparently  unknown  in  this  country. 
There  the  defendant  had  requested  the  plaintiff  to  become 
bail  for  his  (the  defendant's)  daughter,  to  answer  a  criminal 
charge,  and  had  verbally  agreed  to  indemnify  him  for  so 
doing.  The  plaintiff  entered  into  a  recognizance  accord- 
ingly ;  but  the  daughter  did  not  appear,  whereby  the 
recognizance  became  estreated,  and  he  was  compelled  to 
pay  the  amount  thereof,  with  costs  ;  he  then  brought  this 
action  upon  the  defendant's  promise  of. indemnity.  At 
the  trial  he  was  nonsuited  upon  the  objection  that  the 
promise  was  wdthin  the  statute.  A  rule  nisi  was  obtained 
to  ent(^r  the  verdict  for  the  plaintiff;  and  after  argument  tlie 
court  discharged  the  rule,  stating  that  they  were  bound 
by  the  case  of  Green  v.  Cresswell,  and  it  made  no  sub- 
stantial difference  whether  the  bail  was  in  a  civil  or  a 
criminal  case ;  although  in  delivering  their  opinion,  (per 
Crompton,  J.,)  they  intimated  a  doubt  whether  that  case 
could  be  sustained  on  the  merits,  and  that  a  court  of  error 
might  possibly  come  to  a  different  conclusion. 

§  448.  Accordingly  an  appeal  was  taken  by  the  plaintiff 
to  the  Exchequer  Chamber,  which  was  decided  in   1863, 


(/j)  S.  C,  31  Law  Journal,  X.  S.,  (Q.  B.)   150;  2  Bost  and  Smith,  G97; 
and  6  Law  Times  (N.  S.),  C05. 

59 


466  COLLATEEAL   Un'DERTAKIIS'GS.  [Ch.  XIII> 

and  is  reported  in  10  Jurist,  ISTew  Series,  200.  (z)  There 
the  judgment  of  the  court  below  was  reversed,  unani- 
mously. Pollock,  C.  B.,  delivering  the  opinion,  and 
resting  the  decision  upon  a  distinction  between  bail  in  a 
civil  and  in  a  criminal  case.  He  said  that  in  the  latter 
case  there  is  no  contract  on  the  part  of  the  person  bailed, 
to  indemnify  the  person  who  bailed  him  against  his  non- 
appearance. " There  is  in  this  case,"  he  continued,  "no 
debt,  and  with  respect  to  the  person  who  gives  bail,  there 
is  hardly  a  duty ;  and  it  may  well  be,  that  a  promise  to 
indemnify  the  bail  in  a  criminal  matter  should  be  con- 
sidered purely  as  an  indemnity,  and  not  as  the  case  of  a 
promise  to  answer  for  the  default  or  debt  of  another.  It 
has  been  laid  down  in  many  cases  that  a  mere  promise  of 
indemnity  is  not  within  the  statute  of  frauds.  On  the 
other  hand,  where  the  promise  is  to  answer  for  the  default 
of  another,  it  is  within  the  statute.  No  doubt  some  cases 
might  be  put,  where  the  promise  to  answer  for  the  default 
or  debt  of  another,  would  also  involve  a  promise  of  what 
might  be  called  very  properly  and  legally  an  indemnity. 
Where  that  is  the  case,  (as  it  is  not  here,)  in  all  probability 
it  might  come  within  the  statute  of  frauds.  We  are  not 
called  upon  to  overrule  Green  v.  Cresswell,  nor  are  we 
called  upon  to  say  that  we  entirely  concur  in  it ;  but  we 
take  this  distinction,  that  in  the  present  case  the  bail  was 
given  for  the  appearance  of  the  criminal,  and  not  bail  for 
the  purpose  of  answering  a  debt  or  default  in  a  civil 
case."  In  the  Jurist  report  it  is  merely  stated  that  the 
other  judges  concurred ;  but  the  other  reports  include 
also  an  opinion  of  Williams,  J. ,  In  which  he  said  that  he 
did  not  "  think  it  at  all  necessary  to  say  whether  that  case 
is  good  law  or  not ; "  but,  "whether  or  no  in  a  case  where 
the  plaintiff  becomes  bail  for  a  stranger  in  a  civil  suit,  there 
is  a  duty,  as  between  the  defendant  in  the  action  and  the 
surety,  that  he  will  render  or  pay  the  debt,  so  as  to  recon- 
cile the  case  of  Oreen  v.  Cresswell  with  the  ordinary  rule, 

(i)  Also  32  Law  Journal,  N.  S.,  (Q.  B.)  381;  11  Weekly  Reporter,  953  j 
8  Law  Times,  N.  S.,  765. 


Art.  II.]  Collateral  Undertakings.  467 

that  the  statute  applies  only  to  promises  made  to  a  person 
for  whom  another  is  answerable,"  he  thought  that  there 
was  no  debt  or  duty  due  from  the  party  in  a  criminal 

suit.(,/) 

^  449.  In  New  York  the  question  arose  as  early  as  1813 
in  HarrUon  v.  Saiotel,  10  Johnson,  242.  There  it  ap- 
peared that  Sawtel,  the  plaintiff  in  the  court  below,  was 
bail  to  the  sheriff  in  a  suit  against  one  Foot ;  and  that  at 

(y)  The  question  whether  a  contract  on  the  part  of  the  accused  to  indem- 
nify his  bail  in  a  criminal  case  will  be  implied,  has  not,  to  our  knowledge, 
been  raised  in  this  country.  In  Jones  v.  Orcliard,  16  Common  Bench 
Reports,  614,  1  Jurist,  N.  S.,  936,  aiid24  Law  Journal,  N.S.,  C.  P.,  229,  decided 
in  1855,  the  defendant  had  been  indicted  in  the  Central  Ciiminal  Court  for  a 
conspiracy,  and  the  indictment  had  been  removed  to  the  court  of  Queen's 
Bench;  where  the  plaintiff,  at  the  defendant's  request,  entered  into  a  recog- 
nizance with  the  defendant  for  his  appearance,  etc.  The  defendant  was  con- 
victed in  his  absence,  and  the  recognizance  estreated  for  nonpayment  of  the 
prosecutor's  costs ;  the  bail  being  expressly  made  liable  for  such  costs  by 
statute,  although  nothing  was  said  about  them  in  the  recognizance.  This  action 
was  brought  upon  the  implied  contract  of  indemnit}'^,  and  after  verdict,  it  was 
held  that  the  action  could  be  maintained.  Jarvis,  C.  J.,  delivering  the  opin- 
ion of  the  court,  intimated  very  strongly  that  the  law  would  not  imply  a 
contract,  on  the  part  of  the  principal,  to  indemnify  the  bail  against  the  con- 
sequences of  the  recognizance  becoming  estreated  for  the  nonappearance  of 
the  principal ;  because  an  express  contract  to  that  effect  would  be  contrary 
to  public  policy ;  inasmuch  as  it  would  be  in  effect  giving  the  public  the 
security  of  one  person  only  instead  of  two.  But  as  in  this  case  the  recog- 
nizance was  estreated  only  for  nonpayment  of  costs,  the  law  would  imply  a 
promise  of  indemnity  to  that  extent.  The  rule,  of  which  the  court  apparently 
approved  in  this  case,. and  which  was  laid  down  positively  in  Cripps  v.  Hart- 
noil,  would  bear  very  hardly  upon  an  innocent  person  accused  of  crime,  who, 
although  possessed  of  means,  was  a  stranger  in  the  country  where  he  was 
arrested,  or  for  some  other  reason  had  no  friends  who  were  both  willing  and 
qualified  to  become  bail ;  and  the  idea  that  public  policy  requires  it-s  estab- 
lishment appears  to  us  very  fanciful.  In  the  absence  cf  direct  authority  in 
its  support,  we  risk  little  in  saying  that  it  will  not  be  adopted  in  this  country. 
See  Holmes  v.  Knights,  10  New  Hampshire,  175,  and  Kingsley  v.  Balcom, 
4  Barbour,131,  cited  post,  in  each  of  which  the  question  arose  upon  an  indem- 
nity to  bail  in  a  criminal  proceeding,  and  no  suggestion  was  made  that  the 
rule  was  different  from  what  it  would  be  in  a  civil  case.  Of  course  we  do 
not  refer  to  a  case,  where  the  bail  had  been  indemnified  for  the  purpose  of 
procuring  their  assent  to  the  prisoner's  escape. 


468  COLLATEKAL  UnDEETAKHSTGS.  [Cll.  XIII. 

tlie  request  of  Harrison,  "who  held  himself  bound  to 
indemnify  Foot  in  that  action"  (but  how,  or  for  what  rea- 
son the  report  does  not  state),  Sawtel  became  special 
bail,  and  Harrison  promised  to  indemnify  him.  A  judg- 
ment for  the  plaintiff  was  affirmed  in  the  Supreme  Court ; 
the  following  being  all  of  the  opinion  material  to  the  ques- 
tion. ' '  Per  curiam.  Tliis  was  not  a  promise  to  pay  the 
debt,  or  answer  for  the  default  of  another  person.  It  was 
an  original  promise  between  the  parties  to  it,  that  one  of 
them  would  indemnify  the  other,  if  he  would  become 
special  bail  for  a  third  person,  whom  the  defendant  was 
bound  to  protect  and  save  harmless  in  the  suit.  It  was 
done  at  the  request  and  for  the  benefit  of  the  defendant, 
as  it  saved  him  from  becoming  bail  himself,  or  procuring 
some  other  person  to  become  bail.  The  case  had  nothing 
to  do  with  the  statute  of  frauds  ;  and  there  was  a  consid- 
eration for  the  promise,  the  advantage  resulting  to  the 
defendant  from  the  plaintiff '  s  becoming  bail.  The  defend- 
ant being  answerable  for  the  party  sued,  the  becoming 
bail  for  the  party,  at  the  request  of  the  defendant,  was  as 
beneficial  as  if  the  plaintiff  had  become  bail  for  the  defend- 
ant himself.  "(A:) 

§  450.  But  a  ruling  unquestionably  in  point  was  made 
by  the  New  York  Supreme  Court,  in  Chapin  v.  Merrill, 
4  WendeU,  657,  A.  D.  1830.  There  the  plaintiff,  at  the 
request  of  the  defendant  and  upon  his  promise  to  indem- 
nify him,  had  joined  one  Ransom  in  an  agreement  under 
seal,  to  guaranty  the  payment  of  goods  to  be  supplied  by 
Hickok  and  Hart,  a  mercantile  firm,  to  Ransom's  son. 
Upon  the  trial  of  the  action,  the  plaintiff  had  a  verdict 

Qc)  It  seems  to  have  been  assumed  in  most  of  the  subsequent  cases,  that 
the  defendant's  liability  to  Foot  was  the  distinguishing  feature,  upon  which 
the  court  thought  that  the  promise  was  not  within  the  statute.  But,  as  we 
read  this  opinion,  the  stress  seems  to  be  laid  upon  that  fact,  principally,  if  not 
entirely,  to  show  that  there  was  a  sufficient  consideration  for  the  promise. 
Upon  this  question  there  was  room  for  considerable  doubt,  as  the  plaintiflf 
was  already  bail  to  the  sheriff,  (and  so  bound  to  put  in  special  bail,)  at  the 
time  when  the  defendant's  promise  was  made. 


Art.  II.]  Collateral  Undertakings.  469 

under  the  judge's  charge,  which  the  defendant  moved  to 
set  aside.  The  motion  was  denied,  Marcy,  J.,  saying  upon 
this  point:  "This  is  ch^arly  an  original  undertaking;  it 
was  not  made  with  the  party  buying  or  selling  the  goods. 
The  goods  sold  by  Hickok  &  Hart  to  Ransom  were  not 
the  consideration  for  the  promise."  He  held  also  that 
the  consideration  was  the  harm  to  the  plaintiff,  and  that 
it  was  sufficient  to  sustain  the  promise,  although  tlie 
defendant  received  no  benefit  from  the  transaction.  The 
case  of  Thomas  v.  CooJc,  although  decided  two  years  pre- 
viously, is  not  cited  ;  and,  what  is  more  remarkable,  there 
is  no  allusion  iuQ  the  opinion  to  Harrison  v.  Sawtel. 

§  451.  This  case  was  doubted  by  Cowen,  J.,  in  Carnille 
V.  Crane,  5  Hill,  484,(?)  which  did  not,  however,  call  for 
any  expression  of  opinion  upon  the  point ;  but  in  1848  it 
was  overruled  by  the  present  Supreme  Court  of  New 
York  in  Ktngsley  v.  Balcome,  4  Barbour,  131.  The  decis- 
ion rested  chiefly  upon  the  authority  of  Green  v.  Cress- 
well,  which,  as  was  mentioned  in  commenting  upon  that 
case,  has  since  been  very  much  shaken  in  England  ;  and 
in  truth  it  is  now  settled  there,  that  the  decision  does  not 
cover  the  precise  point  adjudged  in  Kingsley  v.  Bal 
come,  {m)  In  the  latter  case  it  appeared  that  the  plaintiff 
had  entered  into  a  recognizance  for  the  appearance  of  one 
McMillen,  to  answer  to  a  charge  of  perjury,  at  the  request 
of  the  defendant  and  upon  his  promise  of  indemnity  ;  but 
whether  McMillen  also  joined  in  the  request  is  not  stated. 
McMillen  having  failed  to  appear,  the  plaintiff"  had  been 
compelled  to  pay  the  full  penalty  of  the  recognizance.  To 
a  declaration  setting  forth  these  facts,  the  defendant 
pleaded  that  the  promise  was  not  in  writing,  and  the 
plaintiff  demurred  to  the  plea. 

§  452.  Sill,  J.,  delivered  the  opinion  of  the  court,  over- 
ruling the  demurrer.     After  citing  the  statute,  he  said  that 

(/)  Cited  ante,  §§  209,  210. 

(m)  Cripps  v.  Hartnoll,  ante,  §§  447,  448. 


470  Collateral  Undertakings.        [Ch.  xiii. 

"to  the  plain  common  sense  of  every  mind,  the  promise  of 
the  defendant  would  be  deemed  a  promise  to  answer  for 
the  default  of  McMillen,  and  to  indemnify  the  plaintiff  for 
his  miscarriage  ; ' '  but  he  added  that  it  was  necessary  to 
look  at  the  decisions,  for  the  meaning  of  this  otherwise 
plain  provision  of  the  statute.  After  mentioning  and 
commenting  upon  Harrison  v.  8awtel,  and  such  Massa- 
chusetts cases  as  had  been  decided  up  to  that  time,  all  of 
which  he  either  distinguished  from  the  case  at  bar,  or  con- 
demned as  unsound,  the  learned  judge  recapitulated  the 
facts  of  Chajnn  v.  Merrill,  and  contended  that  it  was 
erroneously  decided ;  because  when  the  younger  Ransom 
availed  himself  of  the  arrangement,  which  had  been  made 
by  Merrill  with  Chapin  for  his  benefit,  and  used  the  credit 
of  Chapin,  ' '  he  adopted  and  sanctioned  what  Merrill  had 
done  for  him,  and  created  the  relation  of  principal  and 
surety  between  himself  and  Chapin,"  so  that  the  law  im- 
plied a  promise  on  his  part  to  indemnify  Chapin.  It  was 
no  answer,  the  learned  judge  thought,  to  say  that  Cha- 
pin' s  covenant  was  to  another  mercantile  firm  ;  for  Ransom 
junior  had  assumed  two  distinct  obligations  ;  one  to  the 
vendor  of  the  goods,  and  another  to  Chapin.  Merrill' s 
promise  was  not  collateral  to  the  first,  but  it  was  clearly 
so  to  the  second.  "The  case,"  the  learned  judge  said, 
"  stands  unsupported  by  any  decision  in  our  courts.  It 
has  not  been  relied  upon  or  cited  as  authority  for  any 
subsequent  adjudication,  or  received  the  sanction  of  any 
of  our  courts  or  judges."  (?i)  The  opinion  then  referred 
to  Green  v.  Cresswell,  the  facts  in  which,  the  learned 
judge  thought,  "are  precisely  like  those  in  the  case 
before  us,  exicept  that  the  plaintiff  was  bail  in  a  civil  case 
instead  of  a  criminal  one."  And  he  adopted  that  case  as 
authority  for  his  conclusion  that  the  plea  was  good. 

§  453.  The  case  of  Barry  v.  Ransom,  12  New  York  (2 
Kernan),  462,  decided  in  1855,  takes  a  distinction,  which 

{n)  If  this  remark  was  intended  to  include  courts  in  other  States,  it  was 
erroneous,  as  the  subsequent  pages  will  show. 


^rt.  II. J  Collateral  Undertakings.  471 

reconciles  the  conflicting  decisions  in  one  species  of  cases, 
presenting  this  perplexing  question.  In  brief,  the  ques- 
tion before  the  Court  of  Appeals  was,  whether  the  admin- 
istratrix of  Felix  O'Neil,  a  surety  in  a  tax  collector's 
bond,  who  had  paid  the  amount  of  a  defalcation  of  the 
collector,  was  entitled  to  compel  contribution  from  one 
McGloin,  who  had  also  become  a  surety  in  the  bond,  but 
at  the  request  of  O'Neil,  and  upon  the  latter' s  promise  to 
indemnify  him.  In  the  court  below,  a  referee  reported 
that  McGrloin  was  not  bound  to  contribute  any  thing. 
The  report  was  confirmed  and  a  decree  made,  by  which 
the  estate  of  O'Neil  was  ultimately  left  to  bear  the  whole 
of  the  liability  arising  upon  the  bond.  The  administratrix 
of  O'Neil  appealed  to  the  Court  of  Appeals,  where  the 
judgment  of  the  court  below  was  afiirmed.  Denio,  J., 
delivering  the  opinion  of  the  court,  upon  the  question 
whether  the  undertaking  should  have  been  in  writing  to 
satisfy  the  statute  of  frauds,  said  that  if  the  case  was  to  be 
considered,  irrespective  of  the  circumstance  that  O'Neil 
was  also  a  surety  in  the  bond,  there  were  adjudications  on 
both  sides  of  the  question. 

§  454.  Citing  the  diff'erent  adjudications  upon  the  point 
up  to  that  time,  the  learned  judge  added,  that  those  where 
the  promisor  was  himself  bound  for  the  third  person' s 
default,  are  uniform,  in  holding  that  the  contract  is  not 
affected  by  the  statute.  Such  was  the  case  of  Thomas  v. 
Cook,  which  is  overruled  by  the  subsequent  case  of  Green 
V.  Cresswell,  unless  the  distinction  to  which  he  had 
adverted  is  material ;  but  in  the  latter  case  the  promisor 
was  not  a  party  to  the  instrument.  This  difference  between 
the  cases  was  suggested  by  counsel,  upon  the  argument  of 
Green  v.  Cresswell,  and  apparently  made  a  favorable 
impression  upon  one  of  the  judges ;  but  in  the  opinion 
the  court  proceeded  upon  a  disapproval  of  the  ruling  in 
Thomas  v.  Cook.  In  the  case  at  bar,  the  Icai-ned  Judge 
added,  0' Neil's  engagement  to  answer  for  the  default  of 
the  collector  was  in  writing,  and  he  was  under  no  greater 
obligation  to  respond  to  the  corporation  therefor,  in  con- 


472  Collateral  Undertakings.        [Cli.  xiii. 

sequence  of  his  promise  to  McGloin,  than  if  lie  had  not 
made  the  latter.  Lord  Denman's  objection  to  holding  the 
promise  good  in  Green  v.  Cresswell,  was  that  the  statute 
might  be  evaded.  "This  reason,"  said  the  learned  judge, 
"  certainly  does  not  apply  where  the  indemnitor  is  other- 
wise bound  in  writing,  for  the  party  whose  default  is  to  be 
provided  against.  I  am  of  opinion  that  where  a  person 
is  about  to  become  bound  by  writing  to  answer  for  the 
default  of  a  third  party,  and  he  procures  another  to  be 
bound  with  him  in  the  same  obligation,  by  promising  to 
indemnify  him,  that  this  is  an  original  promise  and  not 
within  this  branch  of  the  statute  of  frauds." 

§  455.  In  the  course  of  his  opinion  in  MaMory  v.  Gillett, 
21  New  York,  412,  Comstock,  J.,  classed  this  species  of 
promises  among  those  which  were  without  the  statute,  (o) 
but  the  remark  was  obiter,  and  in  the  subsequent  case  of 
Baker  v.  Dillmann,  12  Abbott's  Practice  Reports,  313, 
and  21  Howard's  Practice  Reports,  444  (A.  D.  1861),  the 
New  York  Supreme  Court  refused  to  recognize  this  die  • 
tum,  and  again  followed  the  rule  laid  down  in  Kmgsley 
V.  Balcome.  The  plaintiff  sued  as  assignee  of  one  Schurig, 
to  recover  a  sum  paid  by  Schurig,  upon  his  guaranty 
given  to  Sarah  Case,  to  secure  the  payment  of  rent 
reserved  in  a  lease  from  her  to  the  Brooklyn  Turn  Verein, 
an  unincorporated  association,  of  which  he  and  the  defend- 
ants were  members.  It  was  proved  that  after  Schurig  had 
ceased  to  be  a  member  of  the  association,  and  before  the 
rent  for  which  he  was  subsequently  sued  had  become 
payable,  the  defendants  signed  "a  declaration,"  which 
the  court  regarded  as  a  contract  to  indemnify  him,  not 
expressing  the  consideration.  Emott,  J.,  delivering  the 
opinion  of  the  court,  held  that  Chapin  v.  Merrill  was 
overruled  by  Kingsley  v.  Balcome;  and  he  referred  to 
Green  v.  Cresswell  as  an  authority  to  show  that  a  promise 
to  indemnify,  in  such  a  case  as  this,  was  within  the  statute. 
He  added  that  he  thought  that  upon  principle  the  result 

(o)  See  ante,  §  64. 


Art.  II.]  Collateral  Undertakings.  473 

would  be  the  same.  Judpjment  upon  the  exceptions  taken 
at  the  trial,  was  accordingly  ordered  for  the  defendant ; 
but  the  learned  judge;  also  assigned,  as  a  reason  for  liis 
decision,  that  there  was  no  consideration  in  fact  for  the 
contract ;  and  he  intimated  that  if  the  plaintiff  had  any 
remedy,  it  was  by  an  action  for  contribution.  Under 
these  decisions  all  that  can  be  said  is,  that  the  rule  in  New 
York  awaits  a  settlement  by  the  court  of  last  resort ;  except 
in  cases  where  the  promisor  and  promisee  wc^e  parties  to 
the  instrument,  which  formed  the  subject  of  the  promise. 

§  456.  In  Perley  v.  Spring^  12  Massachusetts,  297,  de- 
cided in  181/5,  and  again  in  ChaphiY.  Laphaniy  87  Massa- 
chusetts (20  Pickering),  467,  decided  in  1838,  both  of  which 
are  cited  previously  upon  other  points, (;:>)  a  promise  to 
indemnify  the  plaintiff,  for  becoming  surety  for  a  third 
person  to  a  fourth  person  was  held  not  to  be  within  the 
statute ;  but  in  each  case  other  reasons  are  principally 
relied  upon  for  the  decision.  And  although  in  Blake  v. 
Cole,  39  Massachusetts  (22  Pickering),  97,  A.  D.  1839,  the 
point  was  presented  directly  for  adjudication,  and  the 
court  distinctly  determined  it  in  favor  of  the  plaintiff ;  the 
authority  of  the  case  upon  this  point  has  been  sometimes 
doubted ;  partly  because  so  much  stress  was  laid  in  the 
opinion  upon  the  objection  that  the  promise  was  not  to 
be  fullilled  within  a  year  ;  and  partly  on  account  of  the 
peculiar  reason  assigned  by  the  court  for  the  ruling  upon 
this  clause  of  the  statute.  The  plaintiff's  intestate  and 
the  defendant  had  become  sureties  for  one  Hatch,  the  son' 
of  the  plaintiff's  intestate,  on  a  probate  bond  given  by 
him  as  administrator  of  a  deceased  person ;  and  the 
plaintiff,  having  been  compelled  to  pay  a  sum  for  Hatch's 
default,  sued  for  contribution.  The  defence  was  that  the 
defendant  executed  the  bond,  at  the  request  of  the  plaint- 
iff's  intestate,  and  upon  the  latter' s  promise  to  indemnify 
him.  It  appeared  at  the  trial  that  the  defendant  had  been 
applied  to  by  Hatch  junior  to  execute  the  bond,  and  liad 


(i?)  ALt*s^§171,  264. 
60 


474  Collateral  Undertakings.        [Cli.  xiii. 

refused  to  do  so ;  whereupon  the  intestate  had  said, 
"  Well,  if  you  will  not  do  it  for  him,  do  it  for  me  ;  I  will 
hold  you  harmless  ; ' '  and  the  defendant  had  then  answered 
that  he  would  sign  it.  A  verdict  for  the  defendant  having 
been  taken,  subject  to  the  opinion  of  the  court,  judgment 
was  ordered  for  the  defendant ;  on  the  ground,  as  far  as 
this  point  was  involved,  that  the  intestate' s  relation  to  the 
defendant,  was  rather  that  of  a  principal  than  a  co-surety  ; 
and  that  a  surety  may  take  himself  by  contract  out  of  the 
liabilty  to  contribute.  (§') 

§  457.  But  in  1857  all  doubts  upon  this  point  were  con- 
clusively set  at  rest,  as  far  as  the  Massachusetts  courts  are 
concerned,  by  the  decision  of  the  Supreme  Court  of  that 
state  in  the  case  of  Aldrich  v.  Ames,  75  Massachusetts 
(9  Gray),  76.  There  the  case  is  stated  to  have  been  in  sub- 
stance, "that  the  plaintiff  at  the  request  of  the  defendant, 
and  for  a  valuable  consideration,  became  bail  for  John 
A.  Crehore,  upon  which  the  defendant  promised  the 
plaintiff  to  indemnify  and  save  him  harmless,"  and 
the  defence  was  that  the  promise,  not  having  been  in 
writing,  was  within  the  statute  of  frauds.  Shaw,  C-  J., 
said:  "The  court  are  of  opinion  that  this  ground  is 
wholly  untenable.  This  is  a  promise  by  the  defendant  to 
another  to  pay  his  debt ;  or,  in  other  words,  to  save  him 
from  the  performance  of  an  obligation  which  might  result 
in  a  debt.  But  it  is  a  promise  to  the  debtor  to  pay  his  debt, 
and  thereby  to  relieve  him  from  the  payment  of  it  himself, 
which  is  not  within  the  statute  of  frauds.  The  theory  of 
the  statute  of  frauds  is  this,  that  when  a  third  party  prom- 
ises the  creditor  to  pay  him  a  debt  due  to  him  from  a  person 
named,  the  effect  of  such  a  promise  is  to  become  a  surety 
or  guarantor  only,  and  shall  be  manifested  by  written 
evidence.  The  promise  in  such  case  is  to  the  creditor,  not 
to  the  debtor.  For  instance,  if  A,  a  debtor,  owes  a  debt 
to  B,  and  C  promises  B,  the  creditor,  to  pay  it,  that  is  a 
promise  to  the  creditor  to  pay  the  debt  of  A.     But  in  the 

(2)  See  also  Taylor  v.  Savage,  12  Massachusetts,  98,  to  the  same  effect. 


Art.  II.]  Collateral  Undertakings.  476 

same  case,  should  C,  on  good  consideration,  promise  A, 
tlie  debtor,  to  pay  the  debt  to  B,  and  indtMunify  A  from 
the  payment ;  altliough  one  of  the  results  is  to  pay  the 
debt  to  B,  yet  it  is  not  a  promise  to  the  creditor  to  pay 
the  debt  of  another,  but  a  promise  to  tlie  debtor  to  pay  his 
debt.  This  rule  appears  to  us  to  be  well  settled  as  the 
true  construction  of  the  statute,  well  contirmed  by  author- 
ities."    So  the  plaintilF  had  judgment. 

§  458.  The  Supreme  Court  of  Maine  held,  in  SmitJt  v. 
Sayward^  5  Greenleaf,  504  (A.  D.  1829),  that  the  defend- 
ants' promise  to  indemnify  the  plaintiff  for  signing,  at  their 
request,  a  note  as  surety  for  one  Daniel  Smith,  was  not 
within  the  statute  ;  Daniel  Smith  not  having  requested  the 
plaintiff  to  become  his  surety,  and  the  note  having  been 
given  for  a  purchase  of  an  interest  in  lands,  made  by 
Daniel,  as  the  agent  and  for  the  benefit  of  tlu3  defendants, 
although  the  purchase  was  in  Daniel's  own  name,  his 
agency  being  secret.  But  in  this  case,  as  in  Harrison  v. 
Sawtel,  (which  was  chiefly  relied  upon  as  the  authority 
for  the  ruling  of  the  court),  the  opinion  dwelt  so  much 
upon  the  benefit  to  be  derived  by  the  defendants  from  the 
transaction,  as  to  render  somewhat  obscure  the  real 
ground  of  the  decision.  The  opinion  concluded  by  say- 
ing that  "  the  promise  raised  upon  that  consideration  was 
not,  as  contended  by  the  defendants'  counsel,  to  pay  the 
debt  or  answer  for  the  default  of  another ;  but  it  was  to 
indemnify  and  save  the  plaintiff  harmless  for  performing 
a  beneficial  service  for  them,  and  at  their  request ;  to  save 
him  harmless  in  case  he  should  be  compelled,  as  he  has 
been,  to  pay  their  debt  contracted  by  their  agent."  The 
case  is  therefore  of  but  little  authority  upon  either  side  of 
the  question. 

§  459.  In  the  other  States,  the  ruling  lapon  this  quc^stion 
has  generally  depended  upon  the  time  when  it  was  first 
presented  for  adjudication ;  the  earlier  cases  following 
Thomas  v.  Cook,  and  Chapiri  v.  Merrill ;  and  the  more 
recent  cases  following  Ghreen  v.  Cresswell,  and  Kingsley 


476  COLLATEEAL   UNDERTAKINGS.  [Cll.  XIII. 

V.  Balcome,  wliicli  are  regarded  as  having  overruled  their 
predecessors. 

§  460.  The  ablest  argument  upon  principle  in  support 
of  the  doctrine  that  the  promise  is  not  within  the  statute, 
which  has  been  made  in  any  case,  either  in  England  or 
America,  is  to  be  found  in  Chief  Justice  Parker's  opinion 
in  Holmes  v.  Knights,  10  New  Hampshire,  175,  A.  D. 
1839.  There  the  case  was  submitted  to  the  court  upon  a 
statement  of  facts,  from  which  it  appeared  that  one 
Webster  was  ordered  to  recognize,  with  two  sureties,  for 
his  appearance  in  a  criminal  court  to  answer  the  charge 
of  passing  counterfeit  money ;  and  the  plaintiff  entered 
into  such  recognizance  with  Webster  and  one  other  person, 
upon  the  defendant's  oral  application  and  promise  to 
indemnify  him  ;  that  Webster  did  not  appear,  whereby  the 
recognizance  became  forfeited  and  the  plaintiff  had  been 
compelled  to  pay,  etc.  After  argument  the  plaintiff  had 
judgment.  Parker,  C.  J.,  in  delivering  the  opinion  of 
the  court,  after  laying  down  the  general  rule  applicable 
to  collateral  undertakings,  said,  that  the  questions  to  be 
examined  in  this  case  are,  whether  Webster  was  liable  to 
indemnify  the  plaintiff,  and  whether  the  defendant's 
undertaking  was  collateral  to  that  liability.  He  then  pro- 
ceeded :  ' '  When  one  requests  another  to  become  surety 
for  him  and  he  does  so  upon  that  request,  the  law  raises 
an  implied  promise  to  indemnify.  But  the  case  does  not 
find  that  Webster  requested  the  plaintiff  to  recognize  for 
him,  or  that  the  plaintiff  acted  upon  any  such  request. 
From  the  nature  of  the  case,  Webster  must  have  assented 
that  the  plaintiff  should  become  his  surety ;  but  mere 
assent,  without  any  request  or  promise,  and  where  there 
was  a  request  by  a  third  party,  and  an  express  prom- 
ise by  him  to  indemnify,  is  not  sufficient  to  raise  an 
implied  promise.  A  declaration  in  favor  of  the  plaintiff 
against  Webster  must  have  alleged,  that  he  became  surety 
at  his  request,  and  on  the  request  the  promise  to  indem- 
nify may  be  implied.  But  this  case  only  finds  that  the 
defendant  applied,  and  that  he  promised.     If  we  may 


Art.  II.]  Collateral  Undertakings.  477 

infer  that  Webster  assented,  we  cannot  infer  any  request 
by  him.  Of  course  we  cannot  find,  nor  could  a  jury  on 
such  evidence,  any  credit  given  to  Webster,  or  any  origi- 
nal liability  on  his  part,  to  which  the  defendant's  engage- 
ment was  collateral.  "(^) 

§461.  "  For  aught  that  appears  to  the  contrary,"  con- 
tinued the  learned  Cliief  Justice,  "if  Webster  made  any 
request,  the  plaintiff  refused."  "AVebster  in  that  case 
could  not  be  held  liable  on  the  request  he  made,  for  that 
would  not  have  been  acted  on,  but  reject(?d.  Ilie  whole 
credit  would  have  been  given  to  tlie  defendant.  We  do 
not  mean  to  be  understood,  however,  that  the  promise  of 
the  defendant  would  be  within  the  statute,  had  the  case 
stated  that  Webster  also  requested  the  plaintiff  to  become 
surety  for  him.  It  is  apparent  that  the  plaintiff  did  not 
assume  the  liability  upon  the  request  of  Webster,  if  one 
was  made ;  but  upon  the  request  of  the  defendant,  and 
upon  his  promise  to  indemnify  ;  and  there  are  authorities 
showing  that  a  promise  to  indemnify  in  such  case  is  not 
within  the  statute  ;"  citing  and  commenting  upon  Thomas 
V.  Cook  and  Chapin  v.  Merrill.  "The  promise  of  the 
defendant  is  not  to  answer  for  the  default  of  AVebster,  in 
not  appearing  according  to  the  terms  of  the  recognizance. 
That  was  the  undertaking  of  the  plaintiff  in  the  recogni- 
zance itself.  Nor  is  it  to  answer  for  the  default  of  Webster, 
in  not  indemnifying  the  plaintiff.  It  has  no  reference  to 
any  duty  on  the  part  of  Webster  to  indemnify  tlu^  plaint- 
iff, in  case  he  should  make  default.  That  duty  the  def«^nd- 
ant  took  upon  liimself."  The  learned  Chief  Justice 
concluded  his  opinion,  by  saying  that  under  the  circuih- 
stances,  if  Webster  was  also  liable  on  an  ini])li('d  ])romis«', 
that  liability  might  be  held  to  be  an  original  iiuh'pcndent 
liability.  "If  either  was  to  be  deemed  collateral,  the  lia- 
bility of  Webster  in  such  case  would  seem  in  point  of  fact 
to  be  collateral  to  that  of  the  defendant." 

(r)  See  the  same  distinction  between  a  request  and  an  assent  very  neatly 
taken,  and  the  same  consequences  deduced  therefrom,  in  Pearce  v.  Blagrave 
ante,  §  163. 


478  COLLATEEAL   UnDEETAKINGS.  [Cll.  XIII. 

§  462.  The  question  was  decided  in  the  same  way  by 
the  Supreme  Court  of  Georgia  in  Jones  v.  The  Adminis- 
trators of  Shorter,  1  Kelly,  294,  A.  D.  1846.  There  the 
plaintiff  filed  a  bill  for  specific  performance  of  a  verbal 
agreement  by  the  defendants'  intestate,  to  execute  a  bond 
of  indemnity,  and  for  the  payment  by  the  defendants  of 
any  amount,  which  might  be  recovered  against  the  plaintiff 
and  the  defendants,  in  an  action  pending  upon  an  admin- 
istrator' s  bond,  wherein  the  plaintiff  and  the  defendants' 
intestate  were  sureties  for  the  due  performance  of  his  trust 
by  the  administrator ;  alleging  that  the  bond  was  executed 
by  the  plaintiff  upon  the  agreement  of  the  defendants' 
intestate,  to  indemnify  the  plaintiff  against  any  loss  in 
consequence  of  his  so  doing  ;  and  that  after  the  bond  was 
so  executed,  he  promised  to  draw  up  and  execute  to  the 
plaintiff  a  written  indemnity  accordingly.  The  bill  was 
afterwards  amended,  by  alleging  that  the  plaintiff  had 
paid  sundry  sums  of  money  upon  judgments  and  other 
demands,  growing  out  of  the  administrator' s  default.  The 
court  dismissed  the  bill,  holding,  on  the  authority  of 
Thomas  v.  Cooli  and  Chapin  v,  Merrill,  that  there  was  an 
adequate  remedy  at  law  by  an  action  upon  the  verbal 
promise.  This  was  an  action,  it  will  be  noticed,  between 
two  of  tlie  sureties. 

§  463.  And  m  Mills  v.  Brown,  11  Iowa,  314,  A.  D.  1860, 
the  defendant  interposed,  by  way  of  set  off,  a  demand 
against  the  plaintiff,  arising  upon  a  promise  to  indemnify 
him  for  signing  as  surety  a  note  with  a  third  person  ;  and 
it  was  held,  upon  the  same  authorities  and  the  more  recent 
cases  which  followed  them,  that  the  promise  was  not 
within  the  statute.  It  would  appear  from  the  report,  that 
the  note  showed  upon  its  face  that  the  defendant  had 
executed  it  as  surety  for  the  third  person. 

§  464.  A  similar  rule  was  laid  down  by  the  court  below 
in  Doane  v.  Newman,  10  Missouri,  69,  A.  D.  1846,  but  the 
point  was  not  argued  upon  the  appeal,  and  the  case  went 
off  upon  another  point. 


Ai-t.  ir.]  Collateral  Undertakings.  479 

§  465.  In  Kentucky  a  similar  rule  has  been  established 
by  a  series  of  cases  commencing  with  Dunn  v.  West,  5 
B.  Monroe,  376,  A.  D.  1845.  There  the  defendant  inter- 
posed as  a  set  off,  a  demand  against  the  plaintiff,  arising 
out  of  his  having  been  compelled  to  pay  certain  notes, 
which  he  had  signed  with  the  son  of  the  plaintiff  and 
for  his  benefit,  at  the  request  of  the  plaintiff,  and  upon  the 
latter' s  promise,  "that  he  should  not  pay  any  thing  by 
it ;  that  he,  the  plaintiff,  would  pay  the  debt  himself  if 
his  son  did  not ;  and  that  if  he  (West)  had  any  thing  to 
pay  on  the  notes,  he  would  pay  him  back  the  same." 
The  plaintiff  having  objected  that  the  promise  was  within 
the  statute,  the  jury  found  that  the  notes  were  executed 
upon  the  sole  credit  of  the  plaintiff.  The  Court  of 
Appeals  affirmed  a  judgment  allowing  the  set  off,  Mar- 
shall, J.,  remarking,  in  his  opinion,  that  it  was  a  doubt- 
ful question  whether  the  defendant  could  recover  at  all 
from  the  son ;  but  even  if  it  was  clear  that  he  could 
recover,  the  action  would  necessarily  be  founded  upon  an 
assumpsit  raised  by  a  subsequent  fact,  to  wit,  the  payment 
of  the  notes ;  which  would  not  prove  that  there  was  any 
contract  express  or  implied  between  them,  at  the  time 
when  the  notes  were  signed ;  much  less  that  there  was  any 
debt  for  which  the  plaintiff  became  bound.  He  added,  with 
reference  to  the  conditional  character  of  the  promise,  that 
the  plaintiff  did  not  promise  to  pay  West  if  his  son  did 
not  pay  him  ;  but  to  pay  him  if  in  consequence  of  his 
son's  failure  to  pay  the  original  debt  to  another,  West 
should  have  to  pay  that  debt. 

§  466.  This  decision  was  followed  in  Lucas  v.  Chamber- 
lain, 8  B.  Monroe,  276  (A.  D.  1847),  where  the  court 
sustained,  as  not  being  within  the  statute,  a  promise  by 
the  defendant  to  indemnify  the  plaintiffs  for  executing,  as 
sureties,  an  injunction  bond  with  J.  and  J.  St<'phens,  to 
stay  execution  upon  a  judgment  recovered  ngainst  them. 
In  fact  an  execution  upon  tli<^  judgment  stayed  by  the 
injunction  had  been  levied  on  the  property  of  the  defend- 
ant, he  having  been  surety  for  J.  and  J.  Stephens  in  tlin 


480  Collateral  Undertakings.        [Cli.  xiii. 

original  suit ;  and  the  court  laid  stress  upon  that  circum- 
stance in  the  opinion ;  but  nevertheless,  it  was  distinctly 
said  tliat  the  rule  would  have  been  the  same,  if  the  defend- 
ant had  been  an  entire  stranger  to  the  debt.  So  in  Jones 
V.  Letcher,  13  B.  Monroe,  363  (A.  D.  1852),  it  was  held 
that  one  who  had  requested  another,  to  become  jointly 
bound  with  him  as  surety  upon  a  third  person' s  bond  as 
executor,  and  had  verbally  promised  to  indemnify  him 
for  so  doing,  was  liable  upon  the  promise,  although  the 
objection  was  taken  that  the  statute  prevented  a  recovery. 

§  467.  To  these  citations  in  support  of  the  validity  of 
the  verbal  promise,  should  perhaps  be  added  the  recent 
case  of  Reed  v.  Holcomh,  31  Connecticut,  360  (A.  D,  1863), 
although  its  peculiar  circumstances,  and  the  reasons  upon 
which  the  court  proceeded,  materially  affect  its  value  as 
an  authority  upon  this  question.  There  the  defendant 
procured  the  plaintiff  to  indorse  the  note  of  a  third  person, 
for  the  defendant' s  benefit,  and  in  order  to  enable  him  to 
raise  the  money  upon  it,  promising  to  indemnify  the 
plaintiff  for  so  doing ;  and  the  defendant  subsequently 
indorsed  it  himself  and  raised  the  money  upon  it.  The 
court  held  that  the  promise  was  not  within  the  statute,  on 
the  ground  that  the  leading  object  of  the  defendant  was 
to  accomplish  a  purpose  of  his  own.  The  case  of  Green 
V.  Cresswell  was  distinguished  from  this  case  on  that 
ground,  the  court  saying  that  there  the  object  of  giving  the 
bail  bond  was  merely  to  liberate  the  debtor,  (s) 

§  468.  On  the  other  hand  it  appears  to  be  settled  in 
Ohio,  by  recent  decisions,  that  a  promise  to  indemnify  the 
promisee  for  becoming  surety  for  a  third  person  is  within 
the  statute.  Thus  in  Easter  v.  White,  12  Ohio,  New 
Series,  219,  A.  D.  1861,  the  plaintiff  sued  upon  a  verbal 


(.s)  See  the  case  cited  again  in  chapter  seventeenth,  article  second.  But 
upon  the  principle  of  the  decisions  in  BatsoR  v.  King,  ante,  §  445,  and  in 
Barry  v.  Ransom,  ante,  §  453,  the  defendant  was  clearly  liable,  witliout 
resorting  to  the  reason  which  was  assigned  by  the  court  for  its  judgment. 


Art.  II. J  Collateral  Undertakings.  481 

promise  of  the  defendant  to  indemnify  him  for  becoming 
surety,  at  the  defendant' s  request,  for  one  McDonald,  in  an 
undertaking  in  replevin  ;  and  the  Supreme  Court  affirmed 
a  judgment  for  the  defendant,  on  the  ground  that  the 
promise  was  within  the  statute.  The  opinion,  delivered  by 
Sutliff,  J.,  first  considered  the  question  upon  authority, 
regarding  the  law  as  entirely  settled  in  England  by  the 
decision  in  Green  v.  Oresswell,  and  in  New  York  by  that 
in  Klngsley  v.  Balcome,  each  overruling  a  former  case 
holding  the  other  way.  The  opinion  then  proceeded  to 
discuss  the  question  upon  principle  ;  and  concluded  that 
if  the  authorities  left  it  in  doubt,  the  rule  should  be  settled 
in  the  same  way.  In  answer  to  the  argument  that 
McDonald  was  not  liable  when  the  promise  of  indemnity 
was  made,  the  learned  judge  said,  that  it  makes  no  dif- 
ference whether  A,  a  principal,  has  already  made  a  pur- 
chase from  B  and  incurred  a  debt,  for  which  C  asks  D  to 
become  the  surety  of  A,  and  promises  to  indemnify  him 
therefor;  or  w^hether  A's  purchase  can  only  be  obtained 
upon  his  obtaining  such  surety,  and  the  debt  is  contracted 
and  the  surety  becomes  liable,  after  such  a  promise  of 
indemnity.  "In  either  case,"  he  proceeded,  "the  lia- 
bility assumed  by  the  surety  is  only  to  the  effect,  that  the 
principal  shall  discharge  his  own  duty,  or  pay  his  own 
debt ;  and  the  principal  is  bound  in  law  to  prevent  the 
liability  attaching  to  the  surety ;  and  if  the  surety  should 
be  compelled  to  pay  the  debt  or  suffer  any  loss,  as  his 
surety,  then  the  principal  is  in  law  bound  fully  to  indem- 
nify or  remunerate  him  for  the  same."  And  in  this  opin- 
ion the  other  judges  concurred.  But  the  argument,  that 
the  liability  of  the  third  person  arises  out  of  a  subsequent 
payment  by  the  promisee,  was  either  disregarded  or  mis- 
understood. 

§  469.  In  Kelsey  v.  Hihhs,  13  Ohio,  New  Series,  340, 
A.  D.  1862,  a  bill  of  exchange,  payable  to  the  order  of  one 
Hale,  but  not  indorsed,  was  handed  by  the  defendant  to 
the  plaintiff,  with  a  request  to  indorse  it  for  liim,  which 
the  plaintiff  did  ;  and  the  bill  was  subsequently  indorsed 
61 


482  Collateral  Undertakings.         [Cli.  xiii. 

by  Hale  and  negotiated  ;  but  for  whose  benefit  the  report 
does  not  state.  The  name  of  the  defendant  was  not  on  the 
bill,  and  there  was  nothing  else  to  show  that  he  was  liable 
to  the  holders  for  its  payment.  The  plaintiff  was  com- 
pelled to  pay  the  amount  of  the  bill  to  the  holders,  and 
brought  this  action  on  a  contract,  alleged  to  arise  from  the 
circumstances  stated,  to  recover  the  amount  so  paid.  The 
defendant  relied  on  the  statute  of  frauds  as  a  defence. 
And  it  was  held,  that  the  circumstances  showed  no  con- 
sideration suflBcient  to  create  a  distinct  and  independent 
contract,  which  would  not  be  affected  by  the  statute ;  but 
only  a  promise  to  indemnify  against  the  default  of  a  third 
person,  which,  not  being  in  writing,  created  no  legal 
obligation.  But  apart  from  the  question  whether  an 
express  promise  to  indemnify  is  within  the  statute,  this 
was  apparently  a  case  where  the  promise  was  only  implied ; 
whereas  the  statute'  of  Ohio,  like  the  English  statute, 
relates  only  to  special  promises  ;  a  feature  which  the  court 
seems  to  have  entirely  overlooked. 

§  470.  In  Alabama  it  was  also  said,  in  Brown  v,  Adams, 
1  Stewart,  51,  A.  D.  1827,  that  the  defendant's  promise 
of  indemnity  against  any  liability  to  be  incurred  by  the 
plaintiff,  by  reason  of  his  executing  a  bond  as  security  for 
the  due  performance  of  his  duty  by  a  public  officer,  was 
within  the  statute  ;  but  no  authorities  were  cited,  nor  was 
any  reason  for  the  decision  given,  except  that  it  was 
"  clearly  a  promise  to  answer  for  the  default  or  miscar- 
riage of  a  third  person.'-  The  decision  is  not  of  much 
weight,  as  it  was  pronounced  before  the  general  recogni- 
tion of  the  doctrine,  that  a  promise  not  made  to  the  person 
entitled  to  enforce  the  liability  is  not  within  the  statute ; 
and  besides,  the  remark  was  only  a  dictum. 

§  471.  In  North  Carolina  a  verbal  promise  to  indemnify 
one  for  becoming  surety  for  another,  is  regarded  as  being 
within  the  statute,  according  to  a  ruling  in  Draughan  v. 
Bunting,  9  Iredell,  10,  A.  D.  1848.  The  substance  of  this 
case  appears  to  have  been,  that  the  defendants'  testator 


Art.  II.]  Collateral  Undertakings.  483 

promised  to  indemnify  the  plaintiff  for  indorsinp^  a  note  for 
one  Underwood,  the  plaintiff  having  previously  refused 
to  do  so,  "unless  he  could  be  indemnified,  which  he, 
Underwood,  promised  should  be  done;"  and  accordingly 
the  promise  was  given  by  the  testator,  in  consideration  of 
property  transferred  by  Underwood  to  him  ;  after  which 
the  plaintiff  indorsed  the  note.  The  court  said  that  the 
promise  was  void  by  the  statute  of  frauds,  because  Under- 
wood was  under  a  legal  liability  to  indemnify  the  plaintiff; 
however  a  judgment  for  the  defendant  was  reversed, 
because  the  court  thought  he  was  liable,  by  reason  of  the 
property  placed  in  his  hands  by  Underwood. 

§  472.  The  case  of  Brush  v.  Carpenter,  6  Indiana,  78, 
A.  D.  1854,  was  in  some  respects  similar  to  the  one  last 
cited ;  but  here  the  debtor  had  indemnified  the  defendant  by 
a  transfer  of  property,  made  after  the  plaintiff  had  suffered 
damages.  The  report  says  that  the  plaintiff  "became 
replevin  bail  for  one  Anderson,"  upon  the  request  of  the 
defendant,  and  his  verbal  promise  to  indemnify  him  against 
loss,  etc.  ;  without  disclosing  whether  Anderson  also 
requested  the  defendant  to  become  his  surety,  or  merely 
assented  to  his  doing  so.  The  court,  without  discussing 
the  question,  held  that  it  was  ' '  well  settled  by  the  latest 
authorities"  that  the  promise  was  within  the  statute, 
citing  Kingsley  v.  Balcome  and  Green  v.  Cresswell.  But 
a  judgment  for  the  plaintiff  was  affirmed,  for  reasons 
growing  out  of  the  transfer  of  property  to  the  defendant 
by  Anderson. 

^  473.  We  will  conclude  these  citations  "with  a  case, 
which  turned  upon  the  point,  that  although  it  appeared 
that  the  plaintiff  was  a  surety  for  somebody,  it  did  not 
appear  that  there  was  either  a  third  or  a  fourth  person 
concerned,  out  of  whose  relations  to  the  plaintiff  the  ques- 
tion could  arise.  In  Beaman  v.  Russell,  20  Vermont,  206, 
A.  D.  1848,  the  action  was  upon  an  agreement  in  \\Titing, 
whereby  the  defendant  agreed  with  the  plaintiff's  intestate, 
"to  indemnify  him  for  signing  two  notes  with  J.  B.,  A.  R., 


484  COLLATEEAL   UNDERTAKINGS,  [Cll.   XIII. 

and  A.  B.,  for  four  liundred  dollars  each,"  etc.  (describing 
the  notes) ;  and  upon  the  trial  the  plaintiff,  having  proved 
the  notes,  bearing  the  signatures  of  the  three  persons  named 
in  the  agreement,  and  also  of  the  plaintiff' s  intestate,  was 
defeated  ;  partly  on  the  ground  that  the  agreement  did  not 
sufficiently  express  the  consideration.  But  the  Supreme 
Court  granted  a  new  trial,  for  the  reason,  (as  far  as  the 
objection  arising  out  of  the  statute  was  involved,)  that  it 
was  of  no  consequence  whether  the  writing  was  or  was 
not  sufficient ;  because  there  was  no  evidence  that  the 
plaintiff' s  intestate  was  surety  for  any  person  except  the 
defendant  himself ;  and,  for  aught  that  appeared,  all  the 
makers  of  the  note  might  have  signed  it  for  the  accommo- 
dation of  the  defendant,  and  on  his  promise  of  indemnity, 
as  the  plaintiff's  intestate  did.  The  point,  whether  the 
promise  would  have  been  within  the  statute,  had  it 
appeared  that  the  plaintiff' s  intestate  was  in  fact  a  surety 
for  the  other  signers,  was  therefore  left  undecided  ;  but 
the  court  cited  with  approbation  the  cases  in  England, 
New  York,  Massachusetts  and  New  Hampshire,  in  which 
such  a  promise  was  sustained. 

§  474.  As  the  result  of  the  conflict  of  authority  upon 
this  question,  nothing  can  be  regarded  as  definitely  settled  ; 
except,  perhaps,  that  where  the  promisor  and  the  prom- 
isee are  about  to  unite  in  an  instrument  as  sureties  for  the 
third  person,  the  promise  to  indemnify  is  not  within  the 
statute.  With  respect  to  the  weight  of  argument,  the 
side  to  which  the  balance  preponderates  is  even  more 
difficult  to  discover.  If  the  question  was  merely  whether 
the  general  policy  of  the  statute  embraces  such  cases, 
probably  few  lawyers  would  hesitate  to  answer  it  in  the 
affirmative.  And  it  is  by  no  means  clear  that  the  fifth 
rule  excludes  such  cases  from  the  language  of  the  statute. 
But  it  is  more  important  to  have  the  question  definitely 
settled,  than  to  have  it  settled  in  strict  accordance  with  the 
weight  of  argument ;  and  the  preponderance  of  authority 
in  favor  of  the  doctrine  that  such  promises  are  not  within 
the  statute,  is  quite  apparent. 


Art.  II.]  Collateral  Undertakings  485 

§  475.  It  is  believed  that  the  ruling  just  referred  to,  in 
the  case  of  joint  sureties,  involves  an  affirmance  (;f  tlie 
general  doctrine  ;  and  that  it  cannot  be  restricted  within 
the  bounds  implied  by  the  rule,  that  several  sureties  u])on 
the  same  instrument  may  regulate  by  contract  their 
liability  to  contribution.  For  if  it  will  suffice  to  defend 
an  action  for  contribution,  in  favor  of  the  verbal  promisor 
against  the  promisee  ;  we  fail  to  see  upon  what  piinciple 
it  will  not  also  suffice,  to  maintain  an  action  in  favor 
of  the  promisee  against  the  promisor,  to  recover  the  whole 
amount  of  damages,  which  the  plaintiff  has  sustained 
through  a  breach  of  the  verbal  promise.  And  no  sub- 
stantial reason  is  perceived,  w^hy  the  right  to  maintain 
such  an  action  should  depend  merely  on  the  fact,  that  the 
plaintiff  and  the  defendant  had  united  in  the  execution  of 
the  same  instrument. 

§  476.  And  it  seems  to  us,  that  the  courts  have  entirely 
overlooked  another  argument,  which  apparently  carries 
much,  weight,  upon  the  same  side  of  the  question.  It  is, 
that  in  most  of  the  cases  where  the  question  has  arisen, 
the  defendant  would  have  been  liable  upon  an  implied 
promise  to  indemnify  the  plaintiff,  if  he  had  made  no 
express  promise.  It  seems,  therefore,  unreasonable,  inas- 
much as  a  fair  question  arises  upon  the  terms  of  the 
statute,  to  hold  that  it  requires  the  safeguard  of  a  writing, 
in  order  to  prove  an  express  promise  ;  when  upon  the  same 
facts,  an  implied  promise  would  arise,  which  is  clearly 
not  embraced  within  its  terms.  Again,  it  is  difficult  to  see 
upon  what  grounds,  a  substantial  distinction  in  principle 
can  be  taken,  between  a  promise  to  indemnify  one  against 
a  liability,  to  be  thereafter  incurred  by  him,  for  which  a 
third  person  is  already  primarily  liable  ;  and  a  promise  to 
indemnify  him  against  a  liability  theretofore  incurred  by 
him,  for  which  a  third  person  is  likewise  primarily  liable. 
In  either  case,  the  promise  is  in  one  sense  to  answer  for 
the  default  or  miscarriage  of  another ;  and  of  the  two 
descriptions  of  promises,  the  second  appears  to  leave 
room  for  less  doubt  than  the  first,  upon  the  question 


486  COLLATEEAL  UNDERTAKINGS.  [Ch.  XIII. 

whether  the  third  person' s  liability  existed  at  the  time  of 
the  promise.  But  it  seems  to  be  conceded,  that  in  the 
second  case  the  statute  does  not  apply.(^) 

§  477.  We  have,  however,  given  at  such  length  the 
arguments  of  the  distinguished  jurists  who  have  discussed 
this  question,  that  any  further  comments  on  our  part 
appear  to  be  unnecessary.  We  will  only  add  that  the 
application  of  the  principles  upon  which  the  discussion 
has  thus  far  proceeded,  seems  to  depend  in  a  great 
measure  upon  a  question,  which  it  leaves  enveloped  in 
great  obscurity.  This  relates  to  the  precise  point  of  time 
when  the  implied  assumpsit  arises,  in  cases  where  the 
surety  enters  into  the  undertaking,  without  any  request  on 
the  part  of  the  principal,  {u) 


(t)  Westfall  V.  Parsons,  16  Barbour,  645;  Myers  v.  Morse,  15  Johnsou, 
425;  Alger  v.  Scoville,  67  Massachusetts  (1  Gray),  391;  Soule  v.  Albee,  31 
Vermont,  142;  Mersereau  v.  Lewis,  25  Wendell,  243,  cited  in  chapter 
eleventh,  article  second. 

(w)  There  is  very  little  upon  this  subject  in  the  text  books;  and  the  few 
opinions,  w^hich  the  elementary  writers  have  ventured  to  give,  are  quite  aa 
much  at  variance  as  the  decisions  of  the  courts.  Thus  in  the  notes  to  the 
sixth  American  edition  of  Smith's  Leading  Cases,  Volume  I,  pages  477  and 
478,  after  several  cases  have  been  cited,  where  it  was  held  that  the  promise  was 
not  within  the  statute,  the  note  proceeds:  "But  little  reflection  is  requisite, 
however,  to  show,  that  however  widely  the  obligation  imposed  by  an  engage- 
ment of  this  nature  may  differ  from  that  assumed  by  the  principal  or  surety 
towards  the  creditor,  it  is  in  all  material  respects  identical  with  that  which 
subsists  between  the  principal  and  the  surety;  and  this  is  sufiBcient  to  bring 
it  within  the  statute,  which  applies  whenever  the  promise  in  question  is 
expressly  or  impliedly  conditioned  for  the  fulfilment  of  the  collateral  obliga- 
tion of  a  third  person,  and  will  cease  to  be  binding  if  the  latter  is  performed." 
And  again,  after  citing  several  cases  where  the  promise  was  held  to  be  within 
the  statute,  the  annotators  add:  "Amidst  this  diversity  of  decision  it  may  be 
difficult  to  discover  the  true  principle,  but  the  result  of  the  authorities,  as  a 
whole,  seems  to  be  as  follows :  A  promise  to  indemnify  a  surety  for  becoming 
responsible  for  the  principal,  by  a  stranger  to  the  debt  is  prima  facie  within 
the  statute,  because  the  principal  is  bound  by  an  implied  obligation  to  do 
that  which  the  promisor  agrees  to  do  expressly,  and  the  promise  is  there- 
fore really  to  answer  for  the  default  of  the  principal.  When,  however,  the 
promisor  is  directly  or  indirectly  answerable  for  the  debt,  independently  of 


Art.  II.]  Collateral  Undertakings.  487 

§  478.  This  closes  the  examination  of  those  cases  which 
are  taken  out  of  the  statute,  because  their  distinctive 
features  fail  to  satisfy  some  particular  word  or  plirase  of 
the  sentence,  "special  promise  to  answer  for  the  debt, 
default  or  miscarriages  of  another."  They  constitute  the 
second  of  the  three  general  divisions,  into  which  we  have 
ranged  the  cases  for  the  purpose  of  classification,  in  pur- 
suance of  the  plan  heretofore  marked  out.(?))  We  shall 
now  proceed  to  the  examination  of  the  third  general 
division,  consisting  of  cases  which  are  taken  out  of  the 
statute,  although  apparently  within  its  letter,  because  they 
are  not  regarded  as  being  within  its  spirit. 


the  promise,  any  engagement  which  he  may  make  that  it  shall  be  paid,  will  be 
regarded  as  contracted  for  himself,  and  not  for  the  debt  or  default  of  another, 
in  the  sense  in  which  these  terms  are  used  in  the  statute."  On  the  other 
hand  in  the  fifth  edition  of  Parsons  on  Contracts,  Volume  3,  page  22,  note, 
we  find  the  following:  "It  has  been  made  a  question,  whether  a  promise 
by  A  to  indemnify  B  for  guarantying  a  debt  due  from  C  to  D,  is  within 
the  statute.  It  is  clear,  upon  the  authorities  already  cited,  that  such  a  promise 
is  not  within  the  statute,  as  being  a  promise  to  answer  for  the  debt  of  C. 
For  that  purpose  it  must  have  been  made  to  D,  to  whom  the  debt  was  due. 

The  question  would  seem  to  depend  upon  the  time  when 

the  promise  of  C,  the  person  for  whom  the  guaranty  is  given,  arises.  And 
this  again  will  depend  upon  the  particular  circuumstances  of  the  case.  If 
these  are  such,  as  to  authorize  the  inference  that  C  made  an  actual  promise 
to- indemnify  his  guarantor,  at  the  time  when  the  undertaking  of  A  was 
given,  or  prior  thereto,  the  reasonable  presumption  is  that  the  promise  of  A 
was  intended  to  be  collateral.  If,  on  the  other  hand,  there  is  nothing  in  the 
ease  from  which  an  actual  promise  by  C  can  be  inferred,  and  he  can  only  be 
made  liable  on  a  promise  raised  by  operation  of  law,  from  B's  having  been 
compelled  to  pay  money  on  his  account,  it  would  seem  to  be  clear  that  the 
promise  of  A  must  be  original.  For  the  promise  of  C  arises  upon  a  sub- 
sequent and  independent  fact,  after  the  promise  of  A  has  become  a  complete 
and  valid  contract." 

(v)  Ante,  §  70. 


THIRD   GENERAL   DIVISION. 

CASES  WHICH  ARE  NOT  WITHIN  THIS  CLAUSE  OF  THE  STATUTE, 
ALTHOUGH  ALL  THE  TERMS  OF  THE  STATUTORY  DESCRIP- 
TION OF  THE  PROMISES  TO  WHICH  IT  APPLIES,  ARE  LITER- 
ALLY SATISFIED,  BECAUSE  THEY  ARE  NOT  WITHIN  ITS  SPIRIT 
AND  INTENT. 


g  479.  We  have  yet  to  consider,  in  order  to  complete 
the  examination  of  this  part  of  the  statute,  those  cases 
wherein  the  promisor  undertook  to  discharge  to  the  prom- 
isee a  pre-existing  liability  of  a  third  person  ;  which  con- 
tinued in  full  force  and  effect,  after  the  making  of  the 
promise.  This  is  the  most  exact  definition  which  can  be 
framed,  of  a  promise  literally  within  the  language  of  this 
clause  ;  and  the  whole  scope  of  the  discussion  will  neces- 
sarily be  confined  to  an  inquiry  respecting  the  circum- 
stances, under  which  the  statutory  requirement  that  such 
promises  shall  be  in  writing,  will  be  regarded  as  inappli- 
cable ;  because  the  case  is  not  within  the  spirit  and  intent 
of  the  enactment,  however  closely  it  may  conform  to  its 
letter, 

§  480.  There  are  very  many  cases,  where  it  was  decided 
that  the  particular  promise  before  the  court  was  taken  out 
of  the  statute  for  this  reason ;  and  attempts  have  been 
frequently  made,  to  define  with  precision  the  rules  which 
govern  the  application  of  the  principle.  But  the  result 
has  not  been  very  satisfactory.  It  is  readily  conceded, 
that  all  those  cases  which,  being  within  the  letter,  are 
properly  held  to  be  without  the  spirit  of  the  statute,  have 
this  characteristic  in  common,  that  the  substance  of  the 
transaction  differed  from  its  form ;  the  essence  of  the 
promise  having  been  that  the  promisor  undertook  to  an- 
swer for  his  own  conduct,  or  for  his  own  debt.     But  this 


Collateral  Undertakings,  489 

form  of  expression  admits  of  such  latitude  of  application, 
that  it  is  scarcely  any  thing  more  than  a  paraplirase  of 
the  language  of  the  act.  When  we  attempt  to  reduce  it  to 
rules,  framed  in  terms  sufficiently  definite  to  be  practically 
useful,  we  are  met  at  almost  every  step,  by  decisions 
which  are  in  conflict,  not  only  with  respect  to  the  terms 
of  the  rules  whicli  should  govern,  but  frequently  upon 
the  question  whether  a  particular  state  of  facts  is  within 
or  without  a  general  principle  admitted  to  be  sound. 

§  481.  But  we  will  make  the  effort  to  extract  from  these 
discordant  elements,  such  princijoles  as  appear  to  be  best 
supported  by  sound  reasoning  and  the  weight  of  authority; 
following  the  plan,  adopted  in  other  parts  of  this  work,  of 
giving  the  cases  in  opposition  to,  as  well  as  those  in  support 
of  the  principle,  which  appears  to  contain  the  correct  gov- 
erning rule.  By  this  means,  the  reader  himself  will  be  able 
to  rectify  any  errors  into  which  we  may  happen  to  fall ;  a 
contingency  which  may  be  of  more  frequent  occurrence 
than  we  have  ventured  to  hope  ;  because  the  circumstances 
preclude  us,  in  most  instances,  from  resorting  to  any  recog- 
nized standard,  by  which  to  test  the  correctness  of  our 
own  conclusions.  We  will  commence  with  the  first  class 
of  this  general  division,  the  definition  of  which,  as  it  was 
given  in  framing  our  classification,  (a)  is  slightly  expanded 
in  the  title  of  the  following  chapter. 

(a)  See  section  71. 
62 


CHAPTER    FOURTEENTH. 

CASES  WHERE,  AT  THE  TIME  OF  THE  PROMISE,  THE  PROM- 
ISOR WAS  ALREADY  LIABLE  FOR  THE  DEBT  OR  DUTY 
ASSUMED  BY  HIM,  OR  A  SIMILAR  ONE,  IN  SOME  OTHER 
FORM,  OR  TO  SOME  PERSON  OTHER  THAN  THE  PROMISEE  ; 
OR  WHERE  HE  HAD  PREVIOUSLY  BEEN  LIABLE  THERE- 
FOR, AND  HAD  BEEN   ONLY   TECHNICALLY   DISCHARGED. 


§  482.  The  distinguishing  feature,  wliicli  connects  in  one 
class  the  diversified  cases  embraced  in  this  chapter,  is  that 
the  promise  was  not  the  assumption  of  a  new  liability.  It 
related  to  a  liability  previously  existing,  or  alleged  to 
exist,  against  the  promisor,  which  had  never  been  in  fact 
satisfied ;  but  against  the  enforcement  of  which,  in  favor 
of  the  promisee,  he  was  entitled  to  interpose  some  obstacle. 
At  the  same  time,  there  was  a  third  person,  who  would  be 
discharged  by  the  fulfilment  of  the  promise,  upon  whom 
the  same  liability  rested,  or  was  assumed  to  rest ;  for 
which  reason,  the  question  arose  whether  the  promise, 
being  general  in  its  terms,  was  not  an  undertaking  to 
answer  for  his  debt,  default  or  miscarriage.  The  ground 
upon  which  tJiese  cases  are  taken  out  of  the  statute,  is 
that  the  practical  effect  of  the  promise,  was  merely  to 
remove  the  obstacle  to  the  enforcement  of  the  promisor's 
own  pre-existing  liability.  They  are  governed  by  the 
sixth  of  our  general  rules,  which  is  as  follows : 

RULE  SIXTH. 

A  promise  is  •without  the  statute,  if  its  effect  was  merely  to  remove  some  impediment  to  the 
euforcement,  by  the  promisee,  of  a  liability  already  resting  upon  the  promisor,  in  the  same 
or  some  other  form  j  although  its  fulfilment  will  necessarily  result  in  the  [discharge  of  the 
precedent  liability  of  a  third  person  to  the  promisee. 

§  483.  The  impediment  removed  by  the  promise  may 
have  been  a  doubt,  existing  in  law  or  in  fact,  respecting 


Art.  I.]  Collateral  Undertakings.  491 

the  liability  of  the  promisor  for  the  demand  assumed  by 
him  ;  or  it  may  have  been  a  legal  obstacle  to  the  enforce- 
ment, by  action,  of  some  previous  liability,  which  was  of 
undoubted  obligation.  In  the  latter  case,  the  impediment 
may  have  been  formal ;  as  where  the  promisee  was  equi- 
tably the  owner  of  a  demand  against  the  promisor,  but 
having  derived  his  title  from  another  person,  in  whose 
favor  it  had  originally  accrued,  he  could  not  have  main- 
tained an  action  at  common  law,  but  for  the  promise  ;  or 
it  may  have  been  a  substantial  bar  to  any  action,  as  where, 
in  consequence  of  some  act  or  omission  of  the  creditor, 
the  promisor  was  legally  discharged  from  a  previous 
liability,  without  any  actual  satisfaction  of  the  same. 
Instances  where  each  of  these  kinds  of  impediments  was 
removed  by  the  promise,  will  be  given  in  the  course  of 
the  different  subdivision  of  this  chapter. 


AKTICLE  I. 

Where  the  promise  contained  an  admission  of  liability  on  the  part  of  the  promisor  as  a  primary 
debtor  |  but  another  person  was  in  fact  liable,  either  exclusively  or  with  him,  for  the  same 
debt  or  duty, 

§  484.  It  is  now  well  settled,  that  where  the  only  objec- 
tion to  an  action  upon  a  verbal  promise,  is  that  another 
was  already  liable,  jointly  or  severally,  with  the  promisor, 
for  the  demand  assumed  by  him,  the  agreement  is  not 
within  the  statute.  Still  the  letter  of  the  enactment  covers 
such  a  promise  ;  and  at  one  time  a  doubt  existed  whether 
the  case  was  not  within  its  provisions.  Thus  in  Stephens  v. 
Squire^  5  Modern,  205,  and  Comberbach,  362,  A.  D.  1696, 
which  has  already  been  cited  upon  another  point(a)  an 
action  sounding  in  tort,  had  been  brought  against  the 
defendant  and  two  others  ;  and  the  defendant,  in  consid- 
eration that  the  plaintiff  would  not  further  prosecute  tliat 
action,  promised  to  pay  him  10/.  and  costs  of  suit.  In  an 
action  upon  this  promise,  the  plaintiff  having  recovered  a 

(a)  Ante,  §  130,  note. 


492  Collateral  Undertakings.         [Cli.  xiv. 

verdict,  the  defendant  moved  for  a  new  trial,  on  the  ground 
that  the  promis  ■ ' '  was  made  in  behalf  of  another  and  not  in 
writing."  "  But  the  court  were  of  opinion,  that  this  cannot 
be  said  to  be  a  promise  for  another  person,  but  for  his 
own  debt,  and  therefore  not  within  the  statute." 

§  485.  A  few  other  cases  directly  involving,  or  to  be  most 
satisfactorily  explained  upon  the  same  principle,  are  cited 
in  the  note  ;(5)  but  in  these  days  it  is  so  well  understood 
that  it  is  unnecessary  to  discuss  it  at  any  length.  A 
question  of  greater  difficulty  arises,  where  the  promise 
has  been  made  in  consequence  of  a  claim  of  liability 
against  the  promisor ;  but  he .  alleges,  in  defence  of  an 
action  founded  upon  it,  that  he  was  not  liable  for  the 
original  demand  ;  and  that  some  other  person,  whose  dis- 
charge will  result  from  the  fulfilment  of  the  promise  was 
in  fact  liable  ;  so  that  the  promise  was  in  reality,  only  an 
undertaking  to  respond  for  the  latter' s  debt.  The  rule  is 
however  settled,  that  such  an  allegation  shall  not  be  inter- 
posed, for  the  purpose  of  avoiding  a  verbal  promise,  which 
admits  the  existence  of  an  original  liability  on  the  part  of 
the  promisor.  It  may  be  said  that  the  existence  of  such  a 
liability  is  one  of  the  implied,  if  not  the  express  stip- 
ulations of  the  contract,  which  is  accordingly  protected 
by  the  consideration.  Generally  the  promisor  will  be 
estopped  from  denying  his  original  liability ;  but  the  rule 
extends  to  cases  which  fall  short  of  raising  a  technical 
estoppel,  (c) 


(b)  Files  V.  Mcleod,  14  Alabama,  611  (1848)  ;  Aiken  v.  Duren,  2  Nottand 
McCord  (South  Carolina),  370  (1820) ;  Douglass  v.  Jones,  3  E.  D.  Smith 
(New  York),  551  (1854)  ;  and  see  Lord  Ellenborough's  remarks  in  Castling 
v.  Aubert,  2  East,  325,  post,  §  581. 

(c)  However,  in  Hollingsworth  v.  Martin,  23  Alabama,  591,  A.  D.  1853_ 
the  defendant  had  admitted  his  liability  for  a  debt  due  to  the  plaintiff,  and 
had  verbally  promised  to  pay  it,  upon  a  condition,  which  the  plaintiff  insisted 
that  he  had  complied  with.  But  it  appearing  that  it  was  in  fact  the  debt  of 
another,  it  was  held  that  the  defendant  was  not  liable.  The  court  put  its 
opinion  upon  the  ground  that  the  condition  had  not  been  complied  with,  as 
well  as  that  the  statute  applied. 


Art.  I.]  Collateral  Undertakings.  493 

§  486.  Tliis  principle  is  forcibly  illustrated  and  applied 
in  a  recent  determination  of  Vice  Chancellor  Kindersly, 
in  the  case  of  Orrell  v.  Coppock,  26  Law  Journal,  N.  S., 
Chancery,  269  ;  and  2  Jurist,  N.  S.,  1244,  A.  D.  1857.  There 
it  appeared  that  Ralph  Orrell  died  leaving  a  will,  whereby 
he  appointed  liis  son  Alfred  Orrell  and  four  other  persons 
trustees  and  executors  ;  but  Alfred  Orrell  wishing  to  pur- 
chase a  factory,  constituting  a  part  of  the  property,  which 
he  could  not  safely  and  conveniently  do  if  he  was  executor 
and  trustee,  renounced  probate  of  his  father's  will,  and 
disclaimed.  The  remaining  trustees  proved  the  will,  and 
proceeded  to  carry  on  the  testator's  business,  which  was 
managed  by  Alfred  Orrell.  Afterwards  complaints  of 
breaches  of  trust  by  the  trustees,  were  made  by  or  in  behalf 
of  Mrs.  Brooks,  Alfred  Orrell' s  sister,  and  one  of  the 
cestuis  que  trust ;  and  she  and  her  husband  insisted  that 
Alfred  Orrell  had  managed  the  estate  as  one  of  the  trustees, 
and  not  as  agent  of  the  others ;  and  that  he  was  therefore 
personally  liable.  Alfred  Orrell  denied  all  participation  in, 
or  knowledge  of,  the  matters  in  dispute ;  but  after  some 
correspondence,  a  friendly  suit  was  commenced  in  equity ; 
which  was  settled  by  the  solicitor  for  Alfred  Orrell  writing 
a  letter,  in  behalf  of  his  client,  to  the  solicitor  for  Mr.  and 
Mrs.  Brooks,  agreeing  to  give  Mr.  and  Mrs.  Brooks  his 
promissory  note  for  3,000?.,  payable  in  three  years,  with 
interest,  "in  consideration  of  and  in  satisfaction  of  the 
alleged  losses,  Mr.  and  Mrs.  John  Brooks  have  sustained 
from  the  acts  of  the  trustees."  About  a  year  afterwards 
Alfred  Orrell  died,  without  having  given  the  note  ;  and  this 
action  was  commenced  to  settle  his  estate.  The  master 
allowed  the  claim  of  Mr.  and  Mrs.  Brooks  for  the  3000Z., 
and  his  decision  was  affirmed  by  the  Vice  Chancellor.  It 
was  insisted  that  the  letter,  for  want  of  expression  of  the 
consideration,  and  by  reason  of  its  having  been  signed  by 
Alfred' s  solicitor,  was  not  sufficient  to  take  the  case  out 
of  the  statute  of  frauds ;  but  in  answer  to  that  objection 
the  Vice  Chancellor  said:  "Tliat  statute  does  not  apply 
to  the  case  where  a  party,  giving  the  guaranty,  is  him- 
self  liable  to  the  demand,   which  he  is  purporting  to 


494  COLLATEEAL   UnDERTAKHSTGS.  [Ch.  XIV. 

guaranty;  it  must  be  exclusively  the  debt,  default  or  miscar- 
riage of  the  other,  to  bring  it  within  the  statute  ;  and  there- 
fore it  appears  to  me,  that  in  this  case,  when  Mr.  Alfred 
Orrell  was  incurring  this  obligation,  it  was  not  merely  to 
satisfy  the  debt  of  another,  but  the  debt,  which  it  was  in- 
sisted, rightfully  or  wrongfully,  that  he  was  liable  for  ;  and 
it  is  clear  from  the  arrangement  that  none  of  the  losses, 
except  that  of  Winterbotham,  were  individual ;  but  that  all 
were  liable  for  those  losses,  and  therefore  Alfred  Orrell  was 
not  only  to  be  himself  discharged,  but  all  the  others." 

§  487.  The  same  principle  was  applied  to  a  promise 
made  in  settlement  of  a  claim  that  the  promisor' s  prop- 
erty was  liable,  in  FisJi  v.  Thomas,  71  Massachusetts 
(5  G-ray),  45,  A.  D.  1855.  There  the  plaintiff  had  furnished 
materials  for  building  a  ship,  which  had  been  charged  by 
them  to  the  builder ;  and  they  being  about  to  libel  the 
vessel,  to  enforce  a  lien  against  her,  to  which  they  insisted 
they  were  entitled  under  the  State  law,  the  defendant,  who 
was  one  of  the  owners,  and  the  agent  for  the  others,  in 
consideration  of  their  forbearing  to  do  so,  orally  promised 
the  plaintiffs,  that  if  a  libel  upon  a  similar  claim,  then 
pending  in  the  Admiralty,  should  be  sustained,  he  would 
pay  the  debt ;  and  in  consideration  of  this  promise  the 
plaintiffs  refrained  till  their  alleged  lien  was  lost.  The 
Admiralty  claim  having  been  sustained,  an  action  was 
brought  upon  the  promise,  and  the  cause  was  tried  in  the 
Supreme  Court  and  reserved  for  the  opinion  of  the  whole 
court.  As  one  reason  why  the  defendant's  promise  was 
within  the  statute  of  frauds,  his  counsel  insisted  that  the 
State  law  gave  the  plaintiffs  no  lien,  inasmuch  as  the 
materials  were  furnished  on  the  buHder'  s  credit ;  but  the 
court  held  that  the  statute  did  not  apply,  because  this  was 
a  promise  to  pay  a  debt,  for  which  the  defendant' s  prop- 
erty was  responsible,  and  which  was  therefore  his  debt, 
sub  modo  ;  and  that  he  was  estopped  from  denying  that 
the  plaintiffs  had  a  lien,  as  that  was  the  very  subject  of 
controversy,  which  the  parties  had  agreed  should  abide 
the  judgment  of  the  court  in  the  other  cause. 


Art.  I.]  Collateral  Undertakings.  495 

5  488.  A  remarkable  case  in  Iowa,  depending  upon  the 
&ame  principle,  is  reported  under  the  title  of  Tarhell  v. 
Stevens^  7  Iowa,  163,  A.  D.  1858.  There  the  question  arose 
upon  demurrer  to  a  petition,  alleging  in  substance  that 
the  defendants  represented  themselves  to  be  owners  of, 
and  personally  liable  as  stockholders  in  a  certain  bank, 
for  the  payment  of  its  circulating  notes  ;  that  they  adver- 
tised such  a  representation  in  a  public  newspaper,  and 
made  it  verbally,  whereby  they  gave  credit  and  currency 
to  the  notes  ;  that  the  plaintiff  was  a  holder  of  certain  of 
such  notes ;  and  that  he  had  become  so  by  accepting  them 
as  money  from  other  persons,  in  reliance  upon  such 
representation.  It  appears,  from  what  is  said  in  the  opin- 
ion of  the  court,  that  the  defendants'  representation  also 
included  an  express  promise  to  redeem  the  notes.  The 
principal  ground  of  the  demurrer  was  that  the  petition 
showed,  that  the  defendants'  promise  was  not  in  writing. 
The  court  gave  judgment  for  the  plaintiff  upon  the 
demurrer,  remarking  that  the  statute  of  frauds  did  not 
apply,  because  the  defendants'  liability  was  not  for  the 
debt  of  another,  but  upon  an  original  and  independent 
ground ;  that  is,  that  by  their  representations  they  gave 
credit,  character  and  currency  to  the  notes  ;  and  caused 
them  to  be  received  by  the  plaintiff  and  others  in  business 
transactions.  The  opinion  then  added:  "They  were 
bankers  in  the  county,  and  in  the  first  place  represented 
themselves  to  be  liable  for  these  bills  as  stockholders. 
They  may  have  been  taken  as  sole  stockholders  in  the 
bank,  and  owners  of  it.  In  the  second  place  they  adver- 
tised that  they  would  redeem  the  notes  at  their  counter,  in 
said  county,  which  they  refused  to  do.according  to  tlie  decla- 
ration. Thus  by  their  representations  of  liability,  and  their 
proposing  to  redeem  at  their  counter,  they  gave  credit  and 
currency  to  the  bank  bills,  and  caused  them  to  be  actepted 
as  paper  money  of  value."  The  principle  of  this  case  is 
very  correct,  if  the  objection  of  the  want  of  any  definite 
promisee,  ought  not  to  have  been  fatal  to  maintaining  any 
action  whatever  upon  the  alleged  promise.  That  objection 
was   also  overruled   by   the  court,   on   the  ground   that 


496  Collateral  Undertakings.         [Cli.  xiv. 

tli(3  defendants  must  be  considered  as  undertaking  to  every 
individual  who  saw  tlieir  advertisement,  or  heard  their 
representations,  {d) 

§  489.  And  in  Hoover  v.  Morris,  3  Ohio,  56,  A.  D.  1827, 
the  decision  was  controlled  by  a  similar  principle,  although 
it  was  presented  in  the  form  of  a  presumption,  instead  of 
an  estoppel.  There  the  question  was  whether  an  offset, 
interposed  by  the  defendant  in  the  court  below,  had  been 
properly  allowed.  In  order  to  sustain  it  the  defendant 
had  offered  in  evidence  a  paper  signed  by  the  plaintiff,  in 
these  words,  "  I  agree  that  Dr.  Morris's"  (the  defendant' s) 
"  account  against  Samuel  Miller,  amounting  to  about  $26, 
shall  be  offset  and  applied  on  my  claims  against  Dr. 
Morris  now  in  suit,  and  that  I  will  pay  the  same."  The 
plaintiff  insisted  that  the  offset  was  not  admissible,  on  the 
ground  that  the  writing  did  not  express  the  consideration, 
and  moved  for  a  new  trial,  because  it  had  been  admitted 
in  the  court  below  ;  but  the  motion  was  denied,  the  court 
saying:  "It"  (the  memorandum)  "is  nothing  more  than 
an  admission  that  a  stipulated  sum  of  money  is  due  from 
the  plaintiff  to  the  defendant,  for  which  the  latter  shall 
have  credit.  It  is  not  an  undertaking  to  pay  the  debt  of 
Miller,  but  an  acknowledgment  of  a  pre-existing  liability 
to  pay  it."  "In  this  view  of  the  case,  which  we  deem  th» 
correct  one,  it  is  not  touched  by  the  statute  of  frauds." 


ARTICLE  II. 

Where  the  effect  of  the  promiae  was  to  alter  the  form  of  a  previously  existing  liability! 

§  490.  It  is  obvious  that  the  question,  whether  an  altera- 
tion of  a  previously  existing  contract  to  respond  for 
another,  is  within  or  without  the  statute,  generally  depends 
upon  the  nature  and  extent  of  the  alteration.     If  the  con- 

i 

{d)  This  case  might,  perhaps,  have  been  put  upon  the  ground  that  there 
was  a  representation  of  a  fact,  as  well  as  a  promise ;  and  so  that  it  was 
within  the  principle  of  the  cases  cited  in  chapter  iv,  article  ii.  And  see 
Phillipps  V.  Bateman,  16  East,  356. 


Art.  II.]  Collateral  Undertakings.  407 

tract  was  executory,  and  a  now  one  has  been  made,  vary- 
ing from  the  old  contract  in  any  essential  features,  a 
question  at  once  arises,  which  will  be  examined  in  a  sub- 
sequent part  of  this  work,  whether  when  an  agreement  falls 
within  the  statute  of  frauds,  any  material  alteration  of  its 
terms  must  be  evidenced  by  a  writing.  It  will  be  shown  in 
the  proper  place,  that  the  courts  are  not  entirely  of  accord 
upon  this  question.  But  conceding  that  the  statute  ap- 
plies where  the  alteration  is  material,  it  would  evidently 
be  a  forced  construction  of  its  provisions,  to  hold  that 
every  variation  of  a  liability  assumed  by  a  contract,  no 
matter  how  slight  it  may  be,  must  be  regarded  as  a  new 
contract,  and  invested  with  the  same  formalities  as  the 
original  agreement.  It  is  quite  difficult,  however,  to  draw 
the  dividing  line  ;  and  the  principle  must  be  applied  with 
great  caution.  But  where  the  contract  has  been  so  far 
executed,  that  the  promisor's  liability  thereunder  has 
assumed  the  form  of  an  indebtedness,  there  seems  to  be 
no  reason  why  the  statute  should  apply  to  any  agreement 
which  the  parties  may  see  fit  to  make,  not  having  the 
effect  to  increase  the  liability  to  respond  for  another,  which 
the  promisor  has  already  incurred. 

§  491.  A  striking  instance  of  the  application  of  the  prin- 
ciple now  under  examination,  may  be  found  in  Macrory 
V.  Scott,  5  Exchequer,  907, (a)  decided  in  1850.  The  action 
was  debt  on  a  judgment ;  and  the  defendant  pleaded  in 
substance  that  the  judgment  was  recovered,  witli  the  defend- 
ant's assent,  as  surety  for  Scott  Brothers,  to  secure  the 
payment  of  moneys  due  from  Scott  Brothers  to  the  plaint- 
iff, and  to  be  advanced  by  the  plaintiff  to  them  ;  and  that 
all  of  the  moneys  so  due  and  advanced,  for  which  the 
judgment  was  to  be  security,  had  been  paid.  To  which 
the  plaintiff  replied  in  substance,  that  after  the  recovery 
of  the  judgment  an  agreement  was  made  between  the 
plaintiff,  and  Scott  Brothers,  that  for  the  sake  of  winding 
up  the  unsettled  transactions  between  the  plaintiff  and 

(a)  S.  C,  20  Law  Journal,  N.  S.,  Exchequer,  90. 
63 


498  Collateral  Undertakings.         [Cli.  xiv 

Scott  Brothers,  they  should  execute  to  each  other  ix4eases  ; 
that  the  plaintiff  should  advance  to  a  certain  banking- 
company  800Z.,  guarantied  by  him  on  behalf  of  Scott 
Brothers,  and  to  them  directly  200^.  ;  and  that  the  defend- 
ant assented  to  this,  and  agreed  that  the  judgment  should 
stand  as  security  for  the  1,000Z.  At  the  trial  the  plaintiff 
proved  an  agreement  in  writing  by  the  defendant,  assenting 
to  another  agreement  between  the  plaintiff  and  Scott 
Brothers,  which  was  to  the  effect  set  forth  in  the  replica- 
tion ;  but  it  was  insisted  that  the  agreement  signed  by  the 
defendant  did  not  sufficiently  express  the  consideration. 

§  492.  The  plaintiff  had  a  verdict,  and  a  rule  nisi  was 
obtained  to  enter  a  nonsuit  or  for  a  new  trial,  on  the  ground 
that  the  case  was  within  the  statute,  and  also  on  a  question 
of  variance ;  and  after  argument  the  rule  was  discharged. 
Upon  the  point  arising  under  the  statute,  three  of  the 
barons  agreed  that  the  memorandum  was  sufficient ;  but 
Parke,  B.,  also  held  that  the  statute  did  not  apply,  and 
Martin,  B. ,  put  his  decision  entirely  upon  that  ground.  The 
former  said :  "  It  is  not  directly  a  promise  to  pay  the  debt 
of  another,  but  an  agreement  stating  that  property  already 
pledged  for  one  debt  shall  remain  pledged  for  another. 
Although  the  ultimate  effect  is  that  the  debt  may  be  paid, 
yet  the  immediate  object  is  merely  to  appropriate  the 
fund  in  a  different  manner.  It  therefore  falls  within  the 
principle  of  the  decision  in  Castling  y.  Aubert.iV)  It  is 
not  necessary  however  to  decide  that  point,  though  I  feel 
no  doubt  upon  it."  Martin,  B.,  also  said:  "To  my 
mind  this  is  clearly  not  a  case  within  the  statute  of  frauds. 
It  is  not  undertaking  to  answer  for  the  debt,  default  or 
miscarriage  of  another,  but  an  agreement  that  a  certain 
existing  obligation  shall  continue."  "  So  that  even  if  it 
had  been  a  parol  contract  it  would  have  been  perfectly 
good,  as  the  statute  of  frauds  does  not  apply,  "(c) 

Q})  Post,  §  580. 

(c)  The  peculiarity  of  thi?  case,  upon  which  the  remarks  of  Lord  Wensley- 
cLile  ami  Baron  Martin  were  doubtless  founded,  was  that  the  agreement  was 
merely  a  defeasance   or  conditional   satisfaction  of  the  judgment.     For  the 


Art.  II.]  Collateral  Undertakings.  499 

§  493.  The  case  of  Rexford  v.  Brunell,  1  New  York 
Legal  Observer,  396,  decided  in  the  New  York  Common 
Pleas  in  the  year  1843,  is  referable  to  the  same  principle. 
There  the  question  was  whether  a  setoff  interposed  by  the 
defendant,  in  an  action  upon  a  bill  of  exchange  could  be 
allowed.  The  setoif  arose  upon  the  following  facts  :  The 
plaintiff  was  a  surety  for  one  Ensworth,  for  tlie  payment 
of  the  rent  of  a  hotel,  leased  to  him  by  one  Swan ;  one 
month  after  the  lease  had  been  made,  Ensworth  assigned 
it  by  deed  to  the  defendant ;  and  by  a  memorandum  at 
the  foot  of  the  assignment,  he  agreed  to  pay  the  propor- 
tionate part  of  the  quarter's  rent  for  the  month.  The 
defendant  also  agreed  to  indemnify  the  plaintiff  against  his 
suretyship.  A  dispute  arose,  at  the  time  of  the  execution 
of  the  papers,  respecting  the  payment  of  the  month' s  rent 
mentioned  in  the  memorandum  ;  and  the  plaintiff  said 
that  it  "  would  be  all  right,  as  he  would  pay  it  himself; " 
but  the  defendant  was  subsequently  compelled  to  pay  it 
to  Swan.  The  majority  of  the  court  held  that  under  the 
circumstances,  the  defendant's  indemnity  must  be  con- 
strued as  applying  only  to  the  rent  thereafter  to  accrue  ; 
that  with  respect  to  the  month' s  rent,  the  only  question 
was  whether  the  plaintiff's  promise  was  within  the  statute 
of  frauds  ;  and  that  the  promise  was  not  within  the  stat- 
ute, on  the  ground  that  the  j)laintiff  was  already  liable  to 
pay  the  rent  to  the  landlord,  and  hence  he  was  not  under- 
taking to  pay  the  debt  of  another,  but  only  his  own  debt. 

§  494.  So  in  Spann  v.  Baltzell,  1  Florida  (Branch),  301, 
A.  D.  1847,  the  indorser  of  a  promissory  note,  before  the 
maturity  of  the  note,  made  an  agreement  with  the  h.older, 
whereby  the  former  promised  to  pay  the  note  at  maturity, 
punctually  and  without  fail,  out  of  his  own  funds,  and  the 

same  reason  these  remarks  are  not  inconsistent  with  the  doctrine,  that  the 
statute  will  not  permit  a  verbal  alteration  to  be  made  of  a  contract,  which  it 
requires  to  be  in  writing.  But  the  case  is  sui  generis;  and  it  is  difficult  to 
extract  any  principle  from  it,  extending  much  beyond  the  same  state  of 
facts. 


500  Collateral  Undertakings.        [Ch.  xiv. 

latter  promised  to  receive  payment  in  the  circulating  notes 
of  a  certain  bank,  which  were  then  depreciated.  It  was 
held  that  the  agreement  was  made  upon  sufficient  consid- 
eration, and  was  not  within  the  statute  of  frauds.  How- 
ever, the  decision  was  not  distinctly  placed  by  the  court, 
as  we  think  it  should  have  been,  on  the  ground  that  this 
was  a  substituted  agreement ;  the  defendant  being  already 
liable  upon  the  contract  in  another  form. 

§  495.  To  this  class  of  cases  may  also  be  referred  Blount 
V.  Hawkins^  19  ^f^labama,  100,  A.  D.  1851.  There  the 
defendant  had  become  surety  in  a  "replevy  bond,"  given 
by  one  Lunsford,  in  order  to  retain  property  upon  which 
the  plaintiff  had  levied  an  attachment  against  Lunsford  ; 
and  afterwards,  in  consideration  of  the  discontinuance  of 
the  attachment  suit,  he  agreed  with  the  plaintiff  that  he 
would  pay  the  debt.  In  an  action  upon  that  promise,  the 
Supreme  Court  held  that  the  statute  did  not  apply,  and 
affirmed  a  judgment  for  the  plaintiff  rendered  upon  a 
verdict.  The  general  doctrine  upon  which  the  opinion 
of  the  court  was  founded,  namely,  that  a  promise  is  not 
within  the  statute,  when  it  was  founded  upon  a  considera- 
tion beneficial  to  the  promisor  and  injurious  to  the  prom- 
isee, is  no  longer  regarded  as  law ;  but  the  particular 
application  made  of  it  will  perhaps  bring  the  case  within 
this  principle,  inasmuch  as  the  dismissal  of  the  attach- 
ment suit  discharged  the  defendant  from  his  liability,  as 
surety  upon  the  forthcoming  bond. 

§  496.  It  is  hardly  necessary  to  say  that  a  promise  will 
not  be  taken  out  of  the  statute  by  this  principle,  unless 
the  former  liability  rested  directly  upon  the  promisor. 
For  instance  the  fact  that  he  was  a  member  of  a  corpora- 
tion, which  was  liable  for  the  original  debt,  will  not 
suffice  to  sustain  his  verbal  undertaking  to  respond.  (^) 

(d)  Trustees  of  Free  Schools,  etc..  v.  Flint,  54  Massachusetts  (13  Meicalf), 
530  ;  ante,  §  55.  And  see  also  Wyinan  v.  Gray,  7  Harris  and  Julinson 
(Md.),  409,  and  Rogers  v.  Waters,  2  Gill  and  Johnson  (Md.),  G4,  which 
;ire  quit'j  in  point,  althr-u<rh  in  the  latter  the  sufficiency  of  tlie  considera- 
tion wui  the  question  diiectly  involved. 


Art.  III.]         Collateral  Undertakings.  501 

And  perhaps  the  same  principle  requires  that  a  promise 
to  pay  in  one  right,  a  debt  for  wliich  he  was  already 
responsible  in  another  right,  should  be  proved  by  a  writ- 
ing only,  (e) 


ARTICLE  III. 

Where  the  effect  of  the  promise  was  to  waive  a  legal  defence,  against  an  action  founded  npon  a 
previous  engagement  of  the  promisor. 

§  497.  It  cannot  be  doubted,  although,  as  far  as  we  have 
observed,  it  has  never  been  expressly  decided,  that  a  prom- 
ise to  pay  a  debt  originally  contracted  by  the  promisor, 
collaterally  with  a  third  person,  but  barred  by  the  statute 
of  limitations,  or  by  a  certificate  in  bankruptcy,  or  the 
like,  is  not  within  the  fourth  section  of  the  statute  of 
frauds  ;  and  consequently  that  it  is  good  without  writing, 

(e)  See  Rnnn  v.  Hughes,  4  Brown's  Parlicimentary  Cases,  27,  and  7  Term 
Reports,  350,  note,  cited  at  lengtli,  ante,  §  10.  Two  cases  liave  been  pub- 
lished, since  this  work  was  prepared  for  the  press,  involving  to  some  extent 
tlie  same  question.  One  of  them,  Olceson's  Appeal,  59  Pennsylvania,  99,  is 
given  in  full  in  §  32.  The  other  is  Cole  v.  Shurtleff,  41  Vermont,  311, 
decided  in  18C8.  There  one  question  was  whether  a  verbal  promise  made 
by  a  husband,  during  coverture,  to  pay  his  Avife's  debt  contracted  before 
coverture,  would  enable  the  promisee  to  interpose  the  debt  as  a  setoff  to  a 
demand  in  favor  of  the  husband,  upon  which  an  action  had  been  commenced 
after  the  wife's  death.  The  setoff  was  rejected  in  the  court  below,  and  the 
Supreme  Court  afiirmed  a  judgment  in  favor  of  the  plaintiff;  hoKling  that 
inasmuch  as  by  the  marriage,  the  plaintiff  became  jointly  liable  with  hi.i 
wife  for  her  antenuptial  debts,  but  his  liability  as  husband  ceased  upon  her 
death,  unless  it  had  been  enforced  by  a  judgment  recovered  during  the 
coverture;  whereas  on  the  contrary  she  would  continue  to  be  liable  after  his 
death  ;  the  debt  must  be  regarded  as  hers,  throughout  the  time  of  the  cover- 
ture, as  well  as  before  and  afterwards.  It  was  therefore  said  "  that  it  would 
seem  that  the  promise  relied  upon,  referring  to  and  applicable  only  to  the 
debt  of  another,  and  not  being  supported  by  any  consideration,  nor  in 
writing,  was  invalid  within  the  statute  of  frauds."  But  the  decision  was 
also  placed  upon  the  ground,  that  there  was  no  legal  consideration  for  the 
defendant's  general  promise,  within  the  principle  determined  in  Rann  v. 
Hughes;  and  the  ruling  that  there  was  no  consideration  for  the  promise, 
materially  affects  the  value  of  the  case  upon  the  question  arising  under  the 
statute. 


502  Collateral  Uiv^dertakings.         [Ch.  xiv. 

unless  a  writing  has  been  made  necessary  to  its  validity 
by  some  other  statute,  (a)  The  principle  is  very  familiar, 
that  in  all  such  cases  the  new  promise  is  in  effect  not  a 
new  contract,  but  the  revival  of  the  original  debt ;  the 
remedy  upon  which  is  regarded  as  having  been  suspended 
by  the  legal  objection  to  the  recovery.  This  principle,  it 
is  believed,  will  shelter  from  the  operation  of  the  statute, 
all  cases  where  the  promise  was  to  pay  a  debt,  from  which 

(a)  That  an  oral  promise  is  sufficient  to  prevent  the  running  of  the  statute 
of  limitations  against  a  guaranty,  when  it  was  made  before  the  debt  was 
barred,  was  determined  in  Gibbons  r.  McCasland,  1  Barnewall  and  Alderson, 
690,  A.  D.  1818.  This  was  an  action  upon  a  guaranty,  made  by  the  defend- 
ant's testator  in  1808,  whereby  he  agreed  to  be  answerable  for  the  payment 
of  the  price  of  certain  goods,  shipped  by  the  plaintiffs  to  one  Span,  at  a  foreign 
port.  The  defendant  pleaded  the  statute  of  limitations,  and  the  plaintiffs 
replied  that  the  writ  was  sued  out  in  Michaelmas  term,  1817,  and  that  the 
cause  of  action  accrued  within  six  years  before  that  time.  At  the  trial  the 
plaintiffs  proved  the  guaranty  and  the  shipment  of  the  goods ;  that  the 
guaranty  was  exhibited  to  the  testator  in  November,  1811 ;  that  he  then  said 
that  he  remembered  it  perfectly  well,  and  when  he  was  able  it  should  be 
arranged;  and  that  the  writ  had  issued  within  six  years  from  that  time. 
The  judge  thereupon  nonsuited  the  plaintiffs,  on  the  ground  that  as  the 
statute  of  frauds  required  the  contract  to  be  in  writing,  it  was  necessary,  in 
order  to  take  it  out  of  the  statute  of  limitations,  that  the  revival  of  the  con- 
tract should  also  be  in  writing.  A  rule  nisi  for  setting  aside  the  nonsuit 
was  made  absolute.  Lord  EUenborough,  C.  J.,  said:  "It  seems  to  me  that 
the  difficulty  in  this  case  arises  from  considering  together  two  statutes, 
which  have  no  relation  to  each  other.  The  statute  of  frauds  requires  the 
promise  to  be  in  writing;  but  being  once  satisfied,  as  it  has  been  by  a  writing 
in  this  case,  it  may  be  dismissed  entirely  from  the  consideration  of  the  court; 
and  then  the  only  question  will  be,  whether  the  statute  of  limitations  has 
also  been  satisfied  by  the  acknowledgment  here  made."  Upon  this  question 
his  Lordship  said  that  the  language  used  was  the  recognition  of  an  existing 
liability,  and  was  sufficient  to  satisfy  the  statute  of  limitations,  whether  the 
original  promise  had  been  in  writing  or  not.  Bayley,  J.,  said:  "To  satisfy 
the  statute  of  frauds,  there  must  be  a  promise  in  writing ;  and  to  take  the  case 
out  of  the  statute  of  limitations,  there  must  be  a  promise  within  six  years. 
Both  these  requisites  concur  in  the  present  case.  It  is  said  that  the  acknowl- 
edgment must  be  in  writing ;  but  that  is  not  necessary,  for  the  defendant's 
liability  is  fixed  by  the  original  promise  in  writing,  and  the  acknowledgment 
within  six  years  is  only  to  show  that  that  liability  has  not  been  discharged." 
Abbott  and  Holroyd,  JJ.,  concurred  generally. 


Art.  in.]         Collateral  Undertakings.  503 

the  promisor  had  been  discharged  by  the  operation  of 
some  rule  of  law,  without  an  actual  release  by  the  cred- 
itor, or  a  satisfaction  of  the  debt.  And  it  would  seem  tliat 
a  similar  rule  ought  to  govern,  in  all  other  cases,  where  the 
original  contract,  without  being  absolutely  void,  was  void- 
able at  the  election  of  the  promisor  ;  as,  for  instance,  where 
an  agent,  or  person  standing  in  a  similar  relation  to  the 
promisor,  had  exceeded  his  powers  in  making  it.  But 
the  authorities  are  not  always  clear  upon  this  point. 

§  498.  To  commence  with  partnership  cases.  It  has 
been  made  a  question,  whether,  if  a  partner  pledges  the 
firm  credit  without  authority,  either  for  his  own  debt  or 
for  that  of  a  third  person,  under  circumstances  which 
would  entitle  the  other  partners  to  interpose  the  defence, 
a  subsequent  promise  to  pay  the  debt,  by  the  partners 
who  did  not  originally  assent  to  the  use  of  the  firm  name, 
will  fall  within  the  statute.  And  it  was  ruled  in  Ken- 
tucky, in  the  early  case  (A.  D.  1818)  of  Wagnon  v.  Clay, 
1  A.  K.  Marshall,  257,  that  a  verbal  promise  to  that  effect 
will  be  insufficient.  There  the  action  was  brought  by  Clay 
upon  a  joint  note,  signed  in  the  names  of  Wagnon,  M. 
Bell  and  J.  Bell ;  and  it  appeared  that  J.  Bell  signed  the 
name  of  M.  Bell  to  the  note,  as  well  as  his  own ;  they 
being  copartners,  and  the  note  having  been  given  for  a 
debt  of  Wagnon.  It  was  further  proved,  that  after  the 
note  was  execiited,  M.  Bell,  having  been  advised  that  he 
was  not  liable  for  it,  promised  the  plaintift'  to  pay  it. 
Error  having  been  brought  upon  a  judgment  for  the 
plaintiff,  the  court  held  that  as  the  note  was  void  as  to  M. 
Bell  in  the  first  instance,  a  subsequent  verbal  promise  by 
him  to  pay  it,  was  within  the  statute  of  frauds  ;  and  that 
if  such  promise  had  been  made  in  writing,  the  action 
would  necessarily  have  been  upon  the  writing,  and  not 
upon  the  original  note.  On  a  rehearing,  however,  the 
judgment  was  affirmed  ;  but  upon  the  ground  that  there 
was  some  evidence  of  authority,  on  the  part  of  J.  Bell,  to 
bind  his  partner. 


504  Collateral  Undeetakings.         [Cli.  xir. 

§  499.  So  in  the  case  of  Taylor  v.  Hilly er^  3  Blackford 
(Indiana),  433,  decided  in  1834,  the  Supreme  Court  reversed 
a  judgment  in  favor  of  the  plaintiff  and  granted  a  new 
trial,  because  the  judge  at  the  trial  refused  to  give  the 
jury  several  instructions  pertinent  to  the  evidence ;  among 
them  one  to  the  effect  that  where  a  partner  had,  with  the 
knowledge  of  the  payee,  executed  a  note  in  the  firm  name 
for  his  individual  debt,  a  subsequent  verbal  promise  of 
the  other  partners  to  pay  it  was  void  under  the  statute. 
But  as  the  reversal  was  upon  the  whole  case,  and  neither 
of  the  legal  propositions  involved  in  the  exception  was 
specifically  assigned  as  the  ground  of  the  decision,  it  is 
somewhat  doubtful  whether  that  particular  proposition 
was  approved ;  or  whether  the  objection  was  not  that  the 
original  note  was  absolutely  void  against  the  other  defend- 
ants ;  the  evidence  having  tended  to  show  that  at  the  time 
when  it  was  executed,  the  firm  had  been  actually  dissolved, 
and  the  exception  having  presented  that  question. 

§  500.  It  is  believed  that  the  doctrine  of  these  cases,  that 
the  validity  of  the  promise  under  the  statute  is  governed 
by  the  same  rule,  as  if  the  new  promisor  was  an  entire 
stranger  to  the  original  transaction,  is  founded  upon  too 
narrow  a  view  of  the  principle  upon  which  his  liability 
depends  at  common  law.  For  the  act  of  one  partner  in 
pledging  the  credit  of  the  firm  is  not  a  nullity  ;  it  is  merely 
an  excess  of  power  ;  and  the  objection  is  personal  to  the 
other  partner,  and  may  be  waived,  so  as  to  render  the 
contract  valid  ab  origine,  without  any  new  consideration. 
Hence  it  would  seem  that  in  all  such  cases,  a  new  promise 
is  merely  a  recognition  of  antecedent  liability,  and  valid 
although  verbal,  as  being  a  waiver  of  the  excess  of  au- 
thority assumed  by  the  partner,  who  had  undertaken  to 
bind  the  firm.  (J) 

(h)  The  rule  on  the  subject  of  a  subsequent  recognition  by  the  defendant 
of  his  partner's  previous  unauthorized  act,  is  thus  stated  in  Collyer  on  Part- 
nership, 5th  American  edition,  §  507.  "  We  will  conclude  this  section  by 
observing,  what  indeed  has  already  appeared  from  the  case  of  Ex  parte 


Art.  Ill  ]         Collateral  Undertakings.  605 

§  601.  Upon  the  same  principle  it  would  seem,  that  where 
one  of  the  partners  has  been  discharged  from  a  joint  debt 
by  the  operation  of  a  rule  of  law,  a  new  promise  to  pay 
the  debt  should  be  regarded  as  a  mere  waiver  of  his  tech- 
nical defence,  and  therefore  not  within  the  statute  of 
frauds.  The  rule  appears  to  have  been  thus  laid  down  in 
RiceY.  Barry,  2  Cranch  (U.  S.)  Circuit  Court  Reports, 
447,  decided  in  1824.  There  the  declaration  counted  upon 
a  promise  of  the  defendant  to  pay  the  amount  due  to  the 
plaintiff,  upon  a  judgment  rendered  in  his  favor  against 
one  J.  D.  B.  ;  which  promise  was  alleged  to  have  been 
made,  in  consideration  that  the  plaintiff  would  discharge 
the  said  J.  D.  B.  from  the  custody  of  the  marshal,  who 
had  arrested  him  under  a  ca.  sa.  issued  upon  the  judg- 
ment ;  and  in  two  of  the  counts  it  was  alleged  that  the 
demand  upon  which  the  judgment  was  recovered  was  orig- 
inally a  partnership  debt  of  the  defendant  and  the  said 
J.  D.  B.  Upon  the  trial  the  defendant's  counsel  objected 
to  proof  of  a  verbal  promise ;  insisting  that  if  it  was  origin- 
ally a  partnership  debt,  it  had  become  merged  in  the  judg- 

Bonbonus"  (8  Vesey,  540),  "that  if  the  creditor  can  show  that  the  firm 
have  adopted,  as  a  joint  debt,  the  debt  which  was  originally  several,  this  is  an 
answer  to  any  charge  of  collusion  against  the  creditor,  and  the  firm  will 
accordingly  be  answerable  for  repayment  of  the  debt.  In  cases  of  this 
nature,  subsequent,  approbation  by  the  firm  of  the  separate  act  of  their  copart- 
ner, will  be  equivalent  to  previous  consent;  and  continued  ficquiescence  on 
the  part  of  the  firm,  in  a  series  of  separate  contracts  and  engagements,  entered 
into  by  an  individual  partner,  will  be  evidence  of  subsequent  approbation, 
and  will  be  strong  to  show  that  the  particular  partner  engaged  in  these 
various  transactions  is  in  truth  the  agent  of  his  copartners;  "  citing  Wheeler 
V.  Rice,  8  Gushing,  205 ;  Sweetser  v.  French,  2  Gushing,  309  ;  Gansevoort  v. 
Williams,  14  Wendell,  139,  140;  Bank  of  Kentucky  v.  Brooking,  2  Littell, 
41.  "An  express  assent  of  the  other  partners  need  not  be  shown ;  it  may 
be  implied  from  circumstances."  Gansevoort  v.  Williams,  14  Wendell,  133; 
Noble  V.  McClintock,  2  Watts  and  Sergeant,  152.  "The  burden  of  showing 
such  assent  is  on  the  separate  creditor  who  takes  the  partnership  security." 
Davenport  v.  Runlett,  3  N.  Hamp.,  386;  Weed  v.  Richardson,  2  Dev.  and 
Bat.,  535;  Pierce  v.  Pass,  1  Porter,  232;  Story  on  Partn.,  §  133;  Dob  v. 
Halsey,  16  Johns.,  34,  38;  Gansevoort  v.  Williams,  14  Wendell,  133,  135; 
Wilson  V.  Williams,  id.,  146;  Darling  v.  March,  22  Maine,  184;  Brewster  v, 
Mott,  4  Scammon,  378. 
64 


506  Collateral  Undeetakings.         [Ch.  xiv. 

merit,  and  the  defendant' s  promise  to  pay  it  must  be  in 
writing ;  but  after  argument  and  deliberation,  the  court 
admitted  the  evidence,  in  connection  with  proof  that  it  was 
originally  a  joint  debt,  "being  of  the  opinion  that  if  it 
were,  there  was  a  moral  obligation  on  the  defendant  to  pay 
it ;  and  his  promise  to  do  so  was  a  promise  to  pay  his  own 
debt,  and  not  the  debt  of  another,  within  the  meaning  of 
the  statute  of  frauds."  This  case,  upon  the  reason  given 
by  the  learned  judge  for  admitting  the  evidence,  is  directly 
in  point ;  but  there  was  in  truth  another  unanswerable 
reason  for  holding  the  promise  not  to  be  within  the  statute, 
which  does  not  appear  to  have  occurred  either  to  the 
court  or  the  counsel ;  namely,  that  the  arrest  and  dis- 
charge of  J.  D.  B.  extinguished  the  judgment  against 
him.(c) 

§  502.  But  a  ruling  directly  contrary  to  that  in  Rice  v. 
Barry  was  made  in  Greenleaf  v.  BurhanJc,  13  New  Hamp- 
shire, 454,  decided  A.  D.  1849.  There  the  declaration 
stated,  in  substance,  that  the  plaintiffs  had  sold  goods  to 
a  firm,  consisting  of  one  Eastman  and  the  defendant,  and 
had  afterwards  accepted  the  note  of  Eastman  for  the 
goods,  and  discharged  and  settled  the  account  against  the 
firm  ;  and  Eastman  having  died,  the  plaintiffs,  after  his 
death,  presented  the  note  to  the  defendant,  as  surviving 
partner,  and  he  promised  to  pay  it,  but  he  had  failed  to 
do  so.  Upon  the  trial  the  plaintiffs  proved  the  sale  and 
delivery  of  the  goods  to  Eastman  for  the  firm  ;  the  making 
of  an  individual  note  therefor  by  Eastman,  and  the  plaint- 
iffs' acceptance  thereof;  that  before  its  maturity,  the 
defendant  had  admitted  to  the  plaintiffs'  clerk,  that  it  was 
given  for  the  use  of  the  firm,  and  had  promised  him  to 
pay  it ;  that  after  Eastman' s  death  he  had  repeated  that 
promise ;  and  that  the  plaintiffs  had  delayed  presenting 
it  as  a  claim  against  Eastman's  estate.  A  verdict  having 
been  taken,  subject  to  the  opinion  of  the  court,  it  was 
held,  after  argument,  that  upon  the  facts  set  forth  in  the 

(c)    See  chapter  ix,  article  ii. 


Art.  III.]         Collateral  Undertakings.  507 

declaration,  the  defendant' s  liability  for  the  goods  sold  to 
the  firm  terminated,  upon  the  receipt  of  the  note  of  East- 
man, in  payment  of  the  firm  debt ;  and  that  his  subse- 
quent promise  to  pay  it  was  void  for  want  of  considera- 
tion. The  opinion  added:  "The  case,  as  stated  in  the 
declaration,  is  clearly  within  the  statute  of  frauds,  not- 
withstanding the  averment  respecting  the  origin  of  the 
debt."  It  was  then  said  that  the  plaintiff's  could  not 
avail  themselves  of  their  forbearance  against  the  estate  of 
Eastman,  because  no  averment  relating  thereto  was  con- 
tained in  the  declaration ;  that  if  there  had  been  an  allega- 
tion that  they  forbore,  in  consideration  of  the  defendant's 
promise,  it  would  have  presented  a  different  cause  of 
action ;  but  there  was  no  evidence  to  sustain  it,  as  the 
proofs  did  not  show  that  they  forbore  for  any  such 
reason.  But  as  there  was  some  evidence  tending  to  show 
that  Eastman' s  note  was  not  in  fact  received  as  payment, 
the  verdict  was  set  aside,  with  leave  to  the  plaintiff's  to 
amend  their  declaration. 

§  503.  Cases  where  a  person,  who  was  once  liable  as  a 
guarantor,  or  otherwise  collaterally  for  another,  and  has 
been  discharged  by  some  act,  omission,  or  neglect  of  the 
creditor,  (falling  short  of  a  voluntary  and  intentional  sur- 
render of  the  liability,)  subsequently  renews  his  engage- 
ment to  respond  for  the  same  debt,  depend  upon  a  principle 
analogous  to  that  which  obtains,  where  one  of  several 
partners  renews  his  liability  for  a  partnership  debt,  after 
a  technical  discharge.  There  is  respectable  authority  for 
the  doctrine,  that  in  such  a  case  the  new  promise  is  within 
the  statute ;  but  the  rule  is  believed  to  be  otherwise. 
For  the  law  looks  upon  it  as  an  agreement  to  waive  a 
technical  defence  against  a  previously  existing  liability, 
rather  than  a  contract  to  assume  a  new  liability,  as  a 
surety  for  another, 

§  504.  The  only  cases,  within  our  knowledge,  in  which 
such  a  promise  was  held  to  be  within  the  statute,  are 
Feahody  v.  Harvey ^  4  Connecticut,  119,  and  Hiint'inyton 


608  Collateral  Undertakings.         [Cli.  xiv. 

V.  Hccrdey,  id.  124,  decided  in  1821.  With  respect  to  sev- 
eral other  questions  which  arose,  there  were  some  points  of 
diiference  between  these  cases,  but  as  far  as  this  question 
is  involved,  the  facts  in  both  were  identical.  In  each  of 
them  it  appeared  that  the  defendant  had  indorsed  in  blank, 
a  promissory  note,  not  negotiable,  made  by  one  Bushnell 
and  payable  to  Huntington,  which  the  latter  had  assigned, 
with  the  indorsement,  to  Peabody.  By  the  local  law  of 
Connecticut,  a  guaranty,  as  this  indorsement  was  con- 
strued to  be,  is  discharged  ;  unless  demand  shall  be  made 
of  the  principal  at  maturity,  and  an  action  at  once  com- 
menced and  prosecuted  against  him.  Peabody  had  not 
complied  with  these  requirements  ;  but  it  was  shown  that 
after  the  defendant  had  been  discharged,  in  consequence 
of  such  laches,  Peabody  was  about  to  institute  an  action 
upon  the  notes  against  the  maker,  when  the  defendant,  in 
consideration  that  he  would  forbear  to  do  so,  promised 
him  to  pay  the  notes  within  a  certain  period.  In  these 
actions  the  plaintiff  relied  upon  this  promise,  the  second 
suit  being  prosecuted  in  the  name  of  Huntington,  the 
payee,  by  Peabody.  The  court  held  in  each  of  the  cases 
that  no  recovery  could  be  had  upon  the  promise,  on  the 
ground  that  the  defendant,  after  his  discharge,  was  a 
stranger  to  the  notes ;  and  whatever  promise  he  might 
have  then  made,  in  relation  thereto,  must  be  in  writing 
within  the  statute  of  frauds.  A  verdict  having  been  ren- 
dered in  each  cause  for  the  defendant,  under  a  ruling  at 
the  trial  to  that  effect,  a  motion  for  a  new  trial  was  denied. 

§  605.  It  is  however  well  settled,  that  where  an  indorser 
of  a  promissory  note  or  bill  of  exchange,  with  full  knowl- 
edge that  he  has  been  discharged  by  the  holder' s  omission 
to  demand  payment  at  maturity,  and  give  him  notice  of 
nonpayment,  promises  to  pay  the  amount  due  upon  the 
instrument,  he  is  liable  at  common  law,  although  his 
promise  was  not  founded  upon  any  new  consideration. 
And  the  principle  upon  which  his  liability  rests,  appar- 
ently disposes  of  any  objection  arising  under  the  statute. 
In  some  of  the  cases,  where  an  action  was  sustained  upon 


Art.  in.]         Collateral  Undertakings.  509 

sucli  a  promise,  tlie  question  whether  the  statute  applied 
also  arose  upon  the  facts,  and  was  necessarily  involved, 
if  not  expressly  alluded  to  in  the  decision.  This  occurred  in 
Tehhetts  v.  Doiod,  23  AVend<'ll  (New  York),  379,  decided 
A.  D.  1840,  where  the  objection  was  distinctly  taken,  that 
a  promise  made  under  those  circumstances  was  within  the 
statute  ;  although  it  was  not  noticed  by  the  court  in  the 
two  opinions  pronounced.  The  opinion  of  Cowen,  J., 
cited  upwards  of  fifty  English  and  American  cases  in  sup- 
port of  the  doctrine;  and  Bronson,  J.,  coincided,  "not  on 
the  ground  that  the  indorser  is  bound  by  the  promise,  as 
matter  of  contract,  for  it  wants  consideration  ;  but  on  the 
ground  that  the  promise  amounts  to  a  waiver  of  the  objec- 
tion, that  the  proper  steps  had  not  been  taken  to  charge 
the  indorser."  The  same  rule  was  established  in  Massa- 
chusetts, by  the  case  of  Hoj^lcuis  v.Lis2oell,  12  Massachu- 
setts, 52,  A.  D.  1815 ;  and  in  Slgonrney  v.  Wether  ell,  47 
Massachusetts  (6  Metcalf ),  553,  A.  D.  1842,  it  was  held  that 
payment  by  the  guarantor  of  the  interest  upon  a  promis- 
sory note,  made  with  knowledge  that  he  had  been  dis- 
charged by  the  laches  of  the  holder,  sufficed,  as  a  waiver 
of  the  laches,  to  render  him  liable. 

§  506.  The  same  principle  has  been  decided  in  numerous 
other  cases ;  and  in  some  of  them  the  application  of  the 
statute  of  frauds  was  considered,  in  connection  with  this 
question.  Thus  in  The  United  States  Bank  v.  Southard,  2 
Harrison  (New  Jersey),  473,  A.  D.  1840,  where  the  action 
was  against  an  indorser  of  a  promissory  note,  upon  proof 
of  a  promise  to  pay  after  dishonor,  the  objection  that  the 
promise  was  within  the  statute  was  distinctly  taken.  And 
although  the  court  set  aside  a  verdict  for  the  plaintilf, 
because  the  proof  did  not  show  that  the  defendant,  at  the 
time  he  made  the  promise,  knew  that  payment  had  not 
been  demanded  of  the  maker,  the  opinion  expressly  stated 
that  the  objection  growing  out  of  the  statute  was  unten- 
able ;  and  that  an  indorser,  by  a  promise  made  with  full 
knowledge  of  his  discharge,  "places  himself  in  the  same 
condition  he  would  be  in,  if  such  demand  and  notice  had 


610  Collateral  Undertakings.         [Cli.  xiv. 

been  proved."     But  in  this  case  tlie  promise  was  without 
consideration. 

§  507.  The  objection,  that  such  a  promise  is  within  the 
statute,  was  also  unsuccessfully  taken  in  the  subsequent 
case  of  Ashford  v.  Bohinson,  8  Iredell  (North  Carolina), 
114,  A.  D.  1847.  There  the  defendant  was  the  guarantor 
of  a  promissory  note  ;  who,  it  was  insisted,  had  been  dis- 
charged by  neglect  to  prosecute  the  maker ;  and  he  had 
made  a  new  promise  to  pay  the  debt,  in  consideration  of 
forbearance  against  the  maker.  The  court,  affirming  a 
judgment  for  the  plaintiff,  said :  that  there  was  no  sub- 
stantial difference  between  the  liability  of  a  guarantor 
and  of  an  indorser,  upon  such  a  promise  ;  and  in  either 
case  it  must  be  shown  that  the  promise  was  made  with 
full  knowledge  of  the  facts.  The  case  did  not,  however, 
call  for  the  expression  of  any  opinion  upon  this  point,  as 
the  court  held  there  was  no  evidence  of  laches. 

§  508.  It  may  well  be  doubted,  whether  the  distinction 
between  a  waiver  and  a  contract  is  any  thing  but  verbal, 
as  far  as  the  application  of  the  statute  of  frauds  is  involved. 
If  a  new  promise  was  made  upon  a  consideration,  the  decis- 
ions require  us  to  call  it  a  contract.  But  apparently  it  was  a 
contract  to  waive  a  defence,  rather  than  to  pay  a  debt  to 
which  the  promisor  is  a  stranger. 


ARTICLE  ly. 

Where  the  promise  was  to  pay  the  promisor's  debt  to  a  transferee  thereof,  in  order  to  discharge 
a  debt  due  by  the  transferor  to  the  promisee, 

§  509.  We  have  already  examined  the  question  of  the 
validity,  under  the  statute  of  frauds  and  at  common  law, 
of  a  promise,  made  by  a  person  owing  a  debt,  to  pay  the 
same  to  a  transferee  thereof  ;  where  the  consideration  of 
the  promise  was  the  simultaneous  discharge  of  the  trans- 
feror, from  a  debt  due  by  him  to  the  transferee,  in  con- 


Art.  IV.]         Collateral  Undertakings.  611 

sideration  of  wliicli  the  transfer  was  made,  (a)  We  now 
come  to  a  question  wliich,  in  its  common  law  aspect,  is 
but  a  continuation  of  the  former  discussion  ;  but  as 
respects  the  application  of  the  statute  of  frauds,  its  solu- 
tion depends  upon  a  principle  altogether  different  from 
that  whicli  controls,  when  the  debt  of  the  transferor  was 
extinguished.  It  is  whether  a  verbal  promise  of  a  debtor, 
to  pay  his  debt  to  a  transferee  thereof  is  valid,  where  the 
immediate  and  direct  effect  of  fulfilment  of  the  promise 
will  be  to  discharge,  in  whole  or  in  part,  a  debt  due  from 
the  transferor  to  the  transferee;  which  nev(n'theless  remains 
in  full  force  and  effect  after  the  transfer  and  after  the 
promise.  It  would  seem  to  be  very  clear,  that  under  the 
statute  of  frauds  such  a  promise  is  valid ;  because  the 
promisor  merely  undertakes  to  pay  to  one  person  a  debt 
for  which  he  is  already  liable  to  another.  The  fact  that 
the  fulfilment  of  his  promise  will  discharge  the  debt  of  his 
original  creditor  is  wholly  immaterial ;  for  that  relates 
only  to  the  disposition  of  the  moneys,  to  be  paid  by  him 
in  discharge  of  his  own  indebtedness. 

§  510.  And  in  the  United  States,  (notwithstanding  some 
cases,  chiefly  of  an  early  date,  to  the  contrary,)  it  seems 
to  be  reasonably  well  settled,  that  a  promise  by  a  debtor  to 
pay  his  debt  to  any  transferee  thereof,  is  valid  at  common 
law,  if  founded  upon  a  valuable  consideration,  and  even 
if  made  without  consideration.  But  in  England  the 
question  is  involved  in  considerable  uncertainty.  The 
doctrine  that  no  consideration,  except  the  extinguishment 
of  both  of  the  intermediate  debts,  will  sustain  such  a 
promise,  either  verbal  or  written,  continues,  down  to  the 
present  day,  to  be  reiterated  in  the  dicta  of  some  of  the 
English  judges,  and  apparently  to  be  supported  by  some 

(a)  See  chapter  tcnUi,  article  second.  In  both  places  we  have  generally 
used  the  word  transfer  and  its  derivatives,  instead  of  assij^nment  and  its 
derivatives;  because  a  distinction  has  sometimes  been  taken,  between  a  trans- 
RCLioii,  whereby  the  equitable  title  to  the  demand  itself  pa<ses  from  one  party 
to  the  other,  and  a  mere  authority  to  collect  the  proceeds. 


612  Collateral  Undertakings.         [Ch.  xiv. 

decisions  ;  but  it  is  believed  to  rest  upon  no  solid  founda- 
tion of  principle,  and  to  be  irreconcilable  with  other  cases 
of  unquestionable  authority. 

§  511.  In  some  of  the  cases,  the  question  arising  under 
the  statute,  and  that  arising  upon  the  common  law  right 
to  maintain  the  action,  are  treated  as  identical,  or  at  least 
as  depending  upon  the  same  legal  principles  ;  and  some- 
times both  are  involved  in  such  obscurity,  as  to  lead  to 
the  suspicion  that  the  case  has  been  either  badly  reported, 
or  decided  upon  an  erroneous  construction  of  the  trans- 
action between  the  parties.  As  the  common  law  question, 
although  very  clearly  distinguishable  from  that  arising 
under  the  statute,  generally  presents  itself  at  the  same 
time  with  the  latter,  and  upon  the  same  facts,  we  will 
consider  it  at  some  length  in  a  note  at  the  conclusion  of 
this  chapter ;  first  citing  a  few  decisions,  where  the  debate 
arose  upon  the  application  of  the  statute,  either  alone,  or 
in  connection  with  the  right  to  maintain  the  action  at 
common  law. 

§  512.  One  of  the  most  obscure  and  unsatisfactory  of 
the  reported  cases,  is  Lacy  v.  McNelle,  4  Bowling  and 
Ryland,  7,  decided  in  the  King's  Bench,  A.  D.  1824. 
This  was  an  action  '  of  assumpsit  for  money  had  and 
received.  The  plaintiffs  were  creditors  of  one  Goodfellow, 
who  had  accepted  bills  for  the  amount  of  his  debt  to  them, 
which  had  been  dishonored.  An  action  had  been  com- 
menced upon  the  bills  against  Goodfellow,  who  had  been 
arrested  and  had  put  in  bail.  Afterwards  he  executed  a 
deed,  assigning  to  the  plaintiffs  certain  moneys  due  him 
by  the  defendants  ;  and  he  also  gave  the  plaintiffs  a  warrant 
of  attorney,  upon  which  a  judgment  was  entered  up 
against  him,  and  the  action  previously  pending  was  dis- 
continued, and  the  bail  discharged ;  but  at  what  precise 
time  this  was  done  is  not  disclosed  in  the  report.  A 
memorandum  was  also  indorsed  upon  each  bill,  to  the 
effect  that  its  payment  was  "secured"  by  that  assign- 
ment.    Immediately  after  the  assignment  was  made,  notice 


Art.  IV.]  Collateral  Undertakings.  513 

of  it  was  given  to  the  defendants ;  and  certain  conversa- 
tions took  place  between  the  plaintiffs  and  one  of  the 
defendants,  the  effect  of  wliich  was  one  of  the  points  of 
the  case  ;  but  the  court  held  that  it  practically  amounted 
to  a  promise  by  the  defendants  to  pay  the  money  to  the 
plaintiffs.  Upon  the  trial  the  defendants  objected  that 
their  promise  was  within  the  statute  of  frauds ;  but  the 
plaintiffs  had  a  verdict. 

§  513.  Upon  the  hearing  of  a  motion  to  enter  a  nonsuit, 
counsel  for  the  defendants  insisted,  that  as  Goodfellow's 
debt  was  not  extinguished,  the  promise  was  collateral. 
But  Bayley,  J.,  interrupted  him,  saying  tliat  the  case 
was  not  distinguishable  from  Israel  v.  Douglas  ;  (&)  and 
Abbott,  C.  J.,  added:  "The  defendants'  debt  to  Good- 
fellow  was  assigned  to  the  plaintiffs,  and  Goodfellow  dis- 
charged from  all  liability  to  them  ;  then  surely  the  old  debt 
by  him  was  extinguished,  and  a  new  one  by  the  defendants 
created."  The  argument  then  proceeded  upon  the  effect 
of  the  conversations ;  at  its  conclusion,  the  rule  was 
refused  ;  the  per  curiam  opinion  saying,  that  ' '  the  cases 
cited,"  {Israel  v.  Douglas  is  the  only  one  approaching 
this  point,)  "show  that  the  undertaking  in  this  case  is  not 
within  the  statute  of  frauds."  The  facts  of  this  case,  if 
the  reporters  have  truly  stated  them,  certainly  repel  the 
suggestion  of  the  Chief  Justice,  that  Goodfellow  was  dis- 
charged ;  the  whole  transaction  having  been  a  mere  trans- 
fer by  way  of  collateral  security,  followed  uj)  by  a  judg- 
ment upon  the  original  debt.  And  in  Israel  v.  Douglas, 
the  consideration  did  not  pass  from  the  plaintiff  to  the 
defendants'  original  creditor,  until  after  the  making  of 
the  defendants'  promise  ;  and  then  it  was  money  advanced 
as  a  loan. 

§  514.  The  next  case,  where  the  application  of  the  stat- 
ute came  in  question,  was  Wharton  v.  Walker,  4  Barne- 

(h)  1  H.  Blackstone,  239.  A  full  abstract  of  this  case  is  contained  in  the 
note  at  the  end  of  this  chapter. 

C5 


614  Collateral  Undeetakings.  [Ch.  xiv. 

wall  and  Cress  well,  163,  and  6  Dowling  and  Ryland,  288, 
A.  D.  1825.  (c)  There  one  Lythgoe,  being  indebted  to  the 
plaintiff,  gave  him  an  order  for  the  amount  of  his  debt  on 
the  defendant,  who  was  his  tenant,  payable  out  of  the 
next  quarter's  rent;  which  the  plaintiff  sent  to  the 
defendant  "but  had  not  any  direct  communication  with 
him  on  the  subject."  When  the  next  quarter's  rent 
became  due,  the  defendant  presented  it  to  Lythgoe  as  a 
voucher,  and  the  amount  thereof  was  deducted  by  Lythgoe 
from  the  rent,  and  a  receipt  in  full  given  by  him,  the  de- 
fendant promising  him  to  pay  the  money  to  the  plaintiff. 
Upon  these  facts  the  plaintiff  brought  an  action  for  money 
had  and  received,  and  he  was  nonsuited  at  the  trial,  upon 
the  objection  that  the  case  was  within  the  statute  of  frauds. 
Upon  a  motion  to  enter  a  verdict  in  the  plaintiff's  favor, 
the  court  held,  that  the  declaration  should  have  been 
special,  but  all  the  judges  also  said  that  the  action  could 
not  be  maintained,  because  the  three  parties  did  not  con- 
cur, and  therefore  Lythgoe  was  not  discharged.  No 
notice  was  consequently  taken  of  the  objection  arising 
under  the  statute. 

§  515.  But  in  the  same  year  (A.  D.  1825)  the  same  court 
decided  the  case  of  Hodgson  v.  Anderson^  3  Barnewall 
and  Cresswell,  842,  and  5  Dowling  and  Ryland,  735,  where 
both  the  questions  arose  ;  and  it  was  very  clearly  held  that 
mere  forbearance  by  the  plaintiff,  without  any  discharge, 
constituted  a  sufficient  consideration,  for  a  promise  of  the 
defendant  to  pay  to  the  plaintiff  a  debt  which  he  owed 
to  the  plaintiff's  debtor,  made  at  the  latter' s  request. 
There  the  plaintiff  sued  to  recover  the  balance  of  an  ac- 
count due  him  ;  the  defendant  paid  part  of  the  amount 
into  court ;  and  as  to  the  remainder  pleaded  the  gen- 
eral issue,  and  gave  a  notice  of  setoff,  for  money  paid  to 
the  Commercial  Banking  Company  of  Scotland,  by  the 
order  of  the  plaintiff,  in  pursuance  of  a  previous  liability 
incurred  by  the  defendant  at  the  plaintiff's  request.     The 


(c)  Cited  also  ia  chapter  x,  section  329. 


Art.  IV.]  Collateral  Undertakings.  616 

statement  of  the  facts  is  very  voluminous,  but  it  is  believed 
that  the  point  is  suflficiently  presented  by  what  follows. 
The  plaintiff  had  become  indebted  to  the  Commercial 
Banking  Company  of  Scotland  ;  and  the  defendant  (who 
was  a  merchant  in  Trinidad,)  owed  him  the  account  for 
which  the  action  was  brought.  The  plaintiff  gave  to  the 
bank  his  promissory  note  for  his  debt,  at  seven  months, 
and,  at  the  same  time,  as  collateral  security  for  its  pay- 
ment, a  letter  addressed  to  Anderson  and  Rhind,  the 
Edinburgh  agents  of  the  defendant,  directing  them  to 
pay  to  the  bank  the  amount  of  the  note,  (describing  it,)  as 
soon  as  they  should  have  funds  in  their  hands  belonging 
to  the  defendant ;  adding  that  he  would  credit  the  defend- 
ant therefor,  "having  received  his  order  to  this  effect." 
This  letter  was  presented  to  Anderson  and  Rhind  by  the 
bank, and  they  verbally  promised  to  pay  the  amount  accord- 
ing to  its  terms.  The  plaintiff' s  note  was  not  paid  at  matur- 
ity ;  but  various  collections  were  made  from  time  to  time 
by  the  bank,  on  account  of  it ;  and  ultimately  the  plaintiff 
gave  the  bank  an  accepted  bill,  due  in  November  follow- 
ing, for  the  balance  still  unpaid.  Meanwhile  the  plaintiff 
had  endeavored  to  collect  at  Trinidad,  the  debt  due  him 
by  the  defendant,  for  the  benefit  of  another  creditor ;  and 
by  his  authority,  the  defendant  had  given  the  latt(^r  an 
agreement  to  pay  the  debt  to  him,  deducting  any  payment 
which  might  have  been  made  in  Scotland.  The  accept- 
ance given  to  the  bank  by  the  plaintiff  was  not  paid  ;  and 
after  its  maturity  the  defendant,  (who  had  previously 
arrived  in  Scotland,)  was  notified  by  the  holder  of  the 
writing  not  to  pay  the  bank ;  but  afterwards,  Anderson 
and  Rhind,  on  receiving  from  the  bank  an  indemnity,  paid 
to  the  bank  the  amount  of  the  acceptance  ;  for  which  the 
setoff  was  claimed. 

§  516.  The  question,  it  will  be  seen,  was  whether  Ander- 
son and  Rhind,  or  in  other  words  the  defendant,  were 
bound  by  the  verbal  promise  to  pay  the  bank,  the  con- 
sideration of  it  having  been,  not  the  discharge  of  the  debt 
due  by  the  plaintiff,  but  a  mere  forbearance  upon  it.     The 


516  Collateral  Undertakings.         [Ch.  xiv, 

plaintiff  having  recovered  a  verdict,  (disallowing  the 
setoff,)  a  rule  nisi  for  a  new  trial  was  obtained,  wliich, 
after  argument,  was  made  absolute.  Bayley,  J.,  wlio 
delivered  the  opinion,  held  that  it  was  fairly  to  be  inferred 
from  the  plaintiff's  letter,  as  well  as  the  other  evidence, 
that  the  defendant  had  assented  to  the  transfer  to  the 
bank,  of  the  debt  owing  by  him  to  the  plaintiff ;  and  that 
liaving  once  done  so,  and  promised  to  pay  it  to  the  bank, 
he  was  not  at  liberty  to  withdraw ;  and  the  plaintiff  could 
no  longer  revoke  the  authority  to  pay  the  bank.  But 
although  he  quoted  Buller's  rule  in  Tatlock  v.  Harris ^{d) 
he  made  no  allusion  to  the  fact  that  here  the  plaintiff  was 
not  discharged,  merely  adding:  "So  in  this  case,  upon 
payment  by  Anderson  to  the  company,  Hodgson  would 
1)6  discharged."  Then  passing  to  the  question  whether 
the  statute  of  frauds  applies,  he  said  that  it  does  not 
apply ;  because  the  promise  was  not  to  pay  a  debt  of 
Hodgson,  but  his  own  debt ;  and  it  was  made  upon  a  valid 
consideration  moving  from  the  bank,  to  wit,  their  forbear- 
ing to  sue  the  plaintiff. 

§  517.-  The  American  authorities,  as  we  have  already 
said,  generally  coincide  with  the  ruling  in  the  case  last 
cited.  Several  cases  to  that  effect  will  be  found  in  the 
note  at  the  conclusion  of  this  chapter  ;  and  it  will  sufltice 
to  cite  one  in  this  place,  PMllips  v.  Gray^  3  E.  D.  Smith, 
69,  decided  by  the  New  York  Common  Pleas  in  1854. 
There  the  defendant  was  indebted  to  one  Chittenden,  his 
contractor ;  and  the  defendant  and  Chittenden  having 
together  applied  to  the  plaintiff  to  purchase  some  lumber, 
the  plaintiff  refused  to  deliver  it  upon  the  credit  of  Chit- 
tenden ;  whereupon  the  defendant  said  that  he  owed 
Chittenden  money  enough,  and  if  the  plaintiff  would 
deliver  the  lumber,  and  procure  Chittenden's  order  as  a 
voucher  to  him  for  making  the  payment,  he  would  pay 
the  money  to  the  plaintiff ;  and  upon  this  promise  the 
lumber  was  delivered.     A  judgment  of  the  Marine  Court 

(d)  See  §  326,  ante ;  and  the  note  at  the  end  of  this  chapter. 


Art.  IV.]  Collateral  Undertakings.  517 

in  favor  of  the  plaintiff,  rendered  upon  this  evidence,  was 
affirmed ;  the  Court  of  Common  Pleas  holding  that  this 
was  not  witliin  the  statute  of  frauds,  because  it  was  a 
promise  to  pay  the  defendant's  own  debt ;  the  transaction 
being  in  the  nature  of  a  transfer  to  the  plaintiff  of  the 
defendant's  debt  to  Chittenden,  upon  a  sufficient  con- 
sideration. 

§  518.  The  distinction,  which  the  English  cases'  take 
in  this  connection,  between  an  ascertained  and  defined 
debt,  and  a  demand  which  may  ripen  into  a  debt,  upon 
the  happening  of  a  future  contingency,  appears  to  have 
been  the  turning  point  of  tlie  decision  in  The  First  Baptist 
Church  of  Chicago  v.  Hyde,  40  Illinois,  150,  A.  D.  1866. 
There  Hyde,  the  plaintiff  in  the  court  below,  had  recovered 
a  judgment  against  one  Rosbrook,  upon  which  tlie  church 
had  been  garnisheed  as  a  debtor  to  Rosbrook ;  and  the 
question  was  whether  any  thing  was  due  to  Rosbrook  by 
the  church,  which  could  be  svibjected  to  the  garnishee 
process.  It  appeared  that  Rosbrook  had  made  a  contract 
with  the  church  to  perform  certain  labor ;  that  he  had 
entered  upon  the  performance  but  had  not  completed  it ; 
and  an  arrangement  had  been  made  between  him  and  the 
church,  that  the  church  should  employ  others  to  complete 
the  work  and  pay  for  it  out  of  the  moneys  to  be  paid 
to  him,  the  residue  of  the  contract  price  to  be  paid  to 
Rosbrook.  But  before  the  contract  was  abandoned, 
Ferry  &  Son,  who  were  creditors  of  Rosbrook,  presented 
to  the  architect  who  was  to  certify  to  the  bills,  an  order 
from  Rosbrook  to  pay  them  a  certain  sum,  which  was  in 
fact  larger  than  the  amount  which,  upon  the  subsequent 
settlement,  was  found  to  be  due  to  him;  the  architect 
declined  to  accept  or  certify  the  order,  because  it  was 
then  uncertain  whether  Rosbrook  would  complete  the 
contract;  but  he  promised  to  give  them  a  certificate  as 
soon  as  the  amount  was  payable.  Subsequently  he  made 
the  same  promise  to  Rosbrook,  in  answer  to  an  appli- 
cation for  a  certificate  in  favor  of  Ferry  &  Son,  and  a 
request  that  the  money  coming  to  him  under  the  contract 


618  COLLATEKAL   UNDERTAKINGS.  [Ch.  XIV. 

should  be  paid  to  tliem.  The  order  was  then  presented 
to  the  proper  officers  of  the  church,  who  declined  to  accept 
or  pay  it  without  the  architect's  certificate,  but  promised 
to  pay  it  with  such  certificate.  This  was  the  state  of  the 
matter,  when  the  garnishee  process  was  served,  several 
months  afterwards  ;  and  at  a  still  later  period  a  settlement 
was  made,  and  the  amount  payable  to  Rosbrook  under  the 
contract  was  ascertained.  The  question  being  whether 
the  plaintiff  or  Ferry  &  Son  were  entitled  to  the  money, 
the  court  below  decided  it  in  favor  of  the  plaintiff ;  and  a 
judgment  was  rendered  against  the  church,  upon  the  gar- 
nishee process,  for  the  amount  so  ascertained.  Upon 
appeal  the  judgment  was  affirmed.  Walker,  C.  J.,  who 
delivered  the  opinion,  after  reciting  the  facts,  said  that 
there  was  no  transfer  of  the  debt  to  Ferry  &  Son.  And, 
he  continued,  if  what  was  said  by  the  architect  and  offi- 
cers amounted  to  a  promise  to  pay  Ferry  &  Son  the 
debt  due  by  the  church  to  Rosbrook,  it  was  without  con- 
sideration, and  also  void  by  the  statute  of  frauds,  as  being 
a  verbal  promise  to  pay  Rosbrook' s  debt  to  them  ;  so  that 
the  plaintiff  in  the  judgment  acquired  a  legal  lien  upon 
the  sum  due  to  Rosbrook  from  the  church,  (e) 

(e)  The  question,  whether  an  action  will  lie  at  common  law,  upon  a  prom- 
ise of  a  debtor,  to  pay  his  debt  to  a  person  to  whom  it  has  been  transferred  by 
the  creditor,  in  consideration  of  a  debt  due  to  the  transferee  by  the  trans- 
feror, unless,  as  a  part  of  the  transaction,  the  debt  due  by  the  transferor 
to  the  transferee  was  extinguished,  has  already  been  adverted  to  in  the  tenth 
chapter;  but  it  was  then  passed  over;  and  it  will  now  be  examined  in  the 
light  of  the  cases  cited  in  tne  text  of  the  foregoing  article,  as  well  as  those 
contained  in  chapter  x.  In  the  civil  law,  it  seems  to  be  free  from  any  diffi- 
culty. This  is  the  third  species  of  novation  mentioned  in  the  extract  from 
Pothier  contained  in  the  322d  suction,  namely,  that  which  "  takes  place  by 
the  intervention  of  a  new  creditor,  where  a  debtor,  for  the  purpose  of  being 
discharged  from  his  original  creditor,  by  the  order  of  that  creditor  contracts 
some  obligation  in  favor  of  a  new  creditor."  The  discussion  of  the  validity 
of  this  kind  of  novation,  at  common  law,  involves  an  examination  into  the 
question  how  far  the  second  of  the  three  propositions,  which  are  deduced 
from  Mr.  Justice  Boiler's  proposition  in  Tatlock  v.  Harris,  3  Term  Reports, 
ISO,  as  mentioned  in  the  32Gth  section,  is  sustained  by  the  authorities.  No 
doubt  at  common  law  there  must  be  some  consideration,  for  the  promise  of 


CHAPTER  FIFTEENTH. 

OASES  WHERE  A  PROMISE  TO  PAY  A  THIRD  PERSON'S  PRE- 
EXISTING DEBT  IS  NOT  WITHIN  THE  STATUTE,  BECAUSE 
IT  WAS  SUBSTANTIALLY  TO  BE  FULFILLED  OUT  OF  THE 
MEANS   OF  THE  DEBTOR. 


§  519.  We  are  now  to  examine  those  cases  constituting 
the  second  class  of  this  general  division,  namely,  where 
the  promise  was  to  be  fulfilled  out  of  the  means  of  the 

the  debtor  to  pay  the  transferee;  but  it  is  beheved  that  sound  principle,  and 
adjudicated  cases  which  oannot  be  disregarded,  establish  the  doctrine  that 
any  valuable  consideration  is  sufficient  for  the  purpose.  In  the  first  place 
when  the  transferee  can  maintain  an  action,  he  founds  it  upon  the  promise 
and  not  upon  the  transfer.  It  is  true  that  Lord  Tenterden  in  Fairlie  v. 
Denton,  8  Barnewall  and  Cresssvell,  395,  said  that  this  is  an  exception  to  the 
common  law  rule  that  a  chose  in  action  cannot  be  assis^ned,  and  this  dictum 
has  been  copied  by  some  of  the  text  writers.  Chitty  on  Contracts,  8th 
edition,  page  569.  But  it  is  clear  that  this  is  only  a  form  of  expression;  for 
the  substantial  foundation  of  the  action  is  the  defendant's  promise,  and  not 
the  assignment,  as  will  appear  from  the  cases  cited  in  the  tenth  and  in  this 
chapter.  See  particularly  Lilly  v.  Hays,  5  Adolphus  and  Ellis,  548,  cited  in 
the  note  to  §  368,  and  Israel  v.  Douglas,  cited  hereinafter.  No  reason  is  per- 
ceived why  this  species  of  promise  should  require,  in  order  to  give  it  validity, 
any  specific  kind  of  consideration.  In  the  case  put  by  Buller,  namely, 
"Suppose  A  owes  B  100?.  and  B  owes  C  100/.;  and  the  three  meet,  and  it 
is  agreed  between  them  that  A  shall  pay  C  the  100/.,  B's  debt  is  extinguished, 
and  C  may  recover  that  sum  against  A,"  it  is  easy  to  understand  why  A's 
debt  toB  must  be  extinguished,  (at  least  sub  mode,)  before  he  is  liable  to  pay 
it  to  C;  but  no  apparent  reason  exists  why  it  is  necessary  that  B's  debt  to 
C  should  be  extinguished,  in  order  to  sustain  A's  promise  to  C.  To  say  that 
otherwise  B  could  revoke  his  order,  or  that  C  might  put  the  money  in  hia 
pocket  twice,  is  only  reasoning  in  a  circle.  But  it  is  said  that  if  the  debt 
from  A  to  B  is  discharged,  and  at  the  same  time  C  gives  up  his  claim  on  B, 
as  the  ground  upon  which  B  orders  A  to  pay  C,  then  the  consideration 
moves  from  C.  Undoubtedly  that  is  true ;  but  it  is  equally  true  that  if  any 
other  valuable  consideration  passes  from  C  to  A  with  B's  a^^sent,  or  from  C 
to  B  with  A's  assent,  all  the  parties  are  privies  to  the  consideration.     The 


620  Collateral  Undertakings.  [Ch.  xv. 

debtor,  (a)    It  needs  but  little  argument  to  show  that  a 
promise  which  in  terms  binds  the  promisor,  merely  to 


text  writers  give  no  intelligible  reason  for  the  contrary  opinion.  1  Parson? 
on  Contracts,  fifth  edition,  pages  219,  220;  Chitty  on  Contracts,  eighth 
edition,  pages  569,  570;  Addison  on  Contracts,  sixth  edition,  pages  816, 
817.  The  cases  are  equally  unsatisfactory;  they  go  upon  the  supposition 
•'ita  lex  scripta  est."  Secondly,  there  are  several  cases  where  the  facts  must 
be  utterly  perverted  to  conform  them  to  such  a  rule,  and  others  where  no 
perversion  of  the  facts  will  succeed  in  doing  so.  In  Israel  v.  Douglas,  1 
Henry  Blackstone,  239,  decided  in  the  Common  Pleas,  in  the  same  year  with 
Tatlock  V.  Harris  (1789),  an  action  was  sustained  in  favor  of  a  transferee, 
upon  a  promise  of  the  defendants  to  pay  him  the  debt;  the  consideration 
having  been  money  loaned  to  the  transferor  (one  Delvalle)  by  the  plaintiff, 
on  the  .faith  of  the  promise.  The  promise  consisted  of  the  defendants' 
acceptance  of  an  order  from  Delvalle,  to  pay  to  the  plaintiffs  whatever  was 
due ;  they  having  twice  refused  to  accept  his  order  for  a  definite  sum.  Lord 
Loughborough,  C.  J.,  in  his  opinion,  said  that  it  was  "admitted  that  the  plaintiff 
has  the  law  with  him  in  some  action."  Yet  it  was  contended  that  the 
suit  should  have  been  in  the  name  of  Delvalle;  but  the  Chief  Justice 
overruled  that  point,  his  reasons  being,  it  is  supposed,  contained  in  this 
extract  from  a  subsequent  part  of  his  opinion,  generally  cited  as  the 
authority  for  maintaining  the  action  in  the  name  of  an  assignee.  "  The 
debt  is  with  the  consent  of  the  parties  assigned  to  the  plaintiff.  Douglas 
has  due  notice  of  it,  and  assents;  by  which  assent  he  becomes,  with  his 
partner,  liable  to  the  plaintiff."  "When  Douglas  had  admitted  the  money 
to  be  due,  he  was  that  moment  estopped,  as  it  were,  from  saying  that  the 
money  was  not  due."  All  the  judges  concurred  upon  the  merits;  and  it  is 
believed  that  the  case  has  never  been  questioned  upon  that  ground  ;  although 
it  has  been  much  criticised,  because  it  decided  that  the  plaintiff  could  recover 
under  a  count  for  money  had  and  received.  See  Johnson  v.  Collings,  1 
East,  98;  Taylor  v.  Higgins,  3  East,  169;  Per  Bayley,  J.,  in  Wharton  v. 
Walker,  post.  In  Liversidge  v.  Broadbent,  hereinafter  cited,  Martin,  B., 
said:  "  In  Israel  v.  Douglas  there  was  a  consideration  to  support  the  prom- 
ise." In  Wilson  v.  Coupland,  5  Barnewall  and  Alderson,  228,  decided  in  the 
King's  Bench,  A.  D.  1821,  the  plaintiffs'  debtors,  Taillasson  &  Co.,  of  St. 
Lucia,  "inclosed  to  the  plaintiffs  the  account  current,  rendered  to  them  by 
the  defendants,  accompanying  it  with  a  memorandum  at  the  foot,  transferring 
to  the  plaintiffs  the  balance  of  768?.  then  due."  Nothing  was  said  about  a 
discharge;  and  the  768?.  was  but  part  of  the  debt  due  from  Taillasson  &  Co, 
to  the  plaintiffs.  The  defendants  subsequently  promised  in  writing  to  pay 
the  plaintiffs  in  three  months;  but  in  the  mean  time  they  settled  with 
Taillasson  &  Co.  and  procured  their  receipt  in  full.  The  plaintiffs  brought 
fa)  See  section  71. 


Collateral  Undertakings.  521 

apply  to  the  payment  of  a  third  person's  debt,  the  money 
or  property  of  the  debtor  in  liis  hands,  or  tliereafter  to 


this  action  for  money  had  and  received,  and  at  the  trial  had  a  verdict.  The 
defendants  moved  for  a  rule  to  enter  a  nonsuit;  upon  which  motion,  their 
counsel  pressed  upon  the  court  the  argument,  that  the  defendants'  agree- 
ment was  void  for  want  of  consideration,  because  Taillasson  &  Co.  had  not 
been  discharged.  But  the  court  refused  any  rule.  Nothing  was  intimated 
in  any  of  the  opinions,  to  the  effect  that  Tailliis.son  &  Co.  had  been  discharged. 
Abbott,  C.  J.,  said  that,  by  consent  of  all  parties,  an  arrangement  was  made 
that  the  defendants  should  pay  the  plaintiffs  the  debt  they  owed  Taillasson 
&  Co. ;  and  as  this  was  for  money  had  and  received,  the  defendants,  by 
acceding  to  the  arrangement,  made  themselves  liable  for  money  had  and 
received.  Bayley,  J.,  said  that  the  bargain  between  Taillasson  &,  Co.  and 
the  plaintiffs,  was  that  the  money  had  and  received  by  the  defendants  to  the 
use  of  Taillasson  &  Co.,  should  be  money  had  and  received  to  the  use  of  the 
plaintiffs ;  and  that  the  assent  of  the  defendant?'  thereto  made  them  debtors 
and  liable  for  money  had  and  received.  He  added,  that  the  effect  of  the 
agreement  was  to  give  the  defendants  three  months  in  which  to  pay  the 
debt,  which  was  an  advantage  to  them.  Holroyd,  J.,  concurred  without 
giving  any  reasons.  Best,  J.,  said  that  a  chose  in  action  was  not  assignable 
without  consent  of  all  parties;  but  here  all  parties  had  assented,  and  from  the 
moment  of  the  defendants'  assent  the  768?.  became  money  had  and  received 
to  the  plaintiffs"  use.  Not  only  was  there  no  proof  of  any  discharge  of 
Taillasson  &  Co.,  but  the  circumstances  repelled  such  an  idea,  for  the  plaint- 
iffs had  "  a  long  correspondence  "  with  the  defendants,  before  they  procured 
their  promise,  and  of  course  had  not  then  di.-^charged  their  debtors;  and  it 
does  not  appear  that  after  the  promise  they  communicated  with  the  latter  in  any 
way.  The  next  case  was  Lacy  v.  McNeile,  4  Dowling  and  Ryland,  7,  (cited 
in  the  text,  §  512.)  It  is  impossible  to  understand  the  Chief  Justice's  remark, 
during  the  argument  of  that  case,  that  the  debtor  was  discharged;  even  the 
decision  in  Warren  v.  Batchelder,  16  New  Hampshire,  580,  (chapter  xii, 
§  400,)  will  not  sustain  such  a  conclusion;  for  it  was  expressly  in  evidence 
that  the  assignment  was  made  by  way  of  security  for  tlie  debt.  The  next 
case  was  Wharton  v.  Walker.  4  Barnewall  and  Cresswell,  16.3,  and  6  Dowling 
and  Ryland,  288  (also  cited  in  the  text,  §  514).  Here  the  old  doctrine  that 
the  debtor's  promise  to  pay  the  debt  to  the  transferee  is  without  con.sidera- 
tion,  unless  the  debt  due  from  the  transferor  to  the  plaintiff  is  discharged, 
was  reiterated  in  the  decision.  But  the  argument  turned  upon  the  question 
of  pleading,  which  was  apparently  uppermost  in  the  mind  of  the  court  and 
counsel ;  and  the  decision  can  be  clearly  supported  not  only  on  that,  but  on 
two  other  grounds,  viz.:  first,  thai  there  was  no  consideration  whatever  for 
the  defendant's  promise,  at  least  none  moving  from  the  plaintiff;  and 
gecondly,  that  the  promise  itself  was  made  to  Lythgoe,  and  not  to  the 
66 


522  Collateral  Undertakings.  [Ch,  xv. 

come  to  liis  hands,  if  made  with  the  assent  of  the  debtor, 
is  not  within  the  spii'it  of  the  statute.     Some  cases,  pre- 


plaintifif.  The  next  case  was  Hodgson  v.  Anderson,  decided  in  the  same 
year  and  by  the  same  court,  and  abstracted  in  full  in  the  text,  §  515.  This 
decision  should  have  given  the  death  blovr  to  the  doctrine  that  a  discharge 
of  the  original  debtor  is  essential  to  the  validity  of  the  transaction.  It  is 
true  that  it  can  be  nominally  distinguished  from  the  others,  by  the  circum- 
stance that  the  bank  had  already  got  its  money,  without  the  aid  of  an 
action ;  but  the  decision  expressly  takes  the  ground,  and  necessarily  so,  that 
the  defendant's  promise  to  the  bank  with  the  assent  of  the  plaintiff,  was 
binding  upon  him  and  upon  the  plaintiff;  being  founded  upon  a  valuable 
consideration,  namely,  the  forbearance  given  by  the  bank  to  its  debtor. 
Suppose  the  money  had  not  been  actually  paid ;  how  could  the  court  have 
held,  after  this  decision,  that  the  bank  could  not  sustain  an  action,  on  the 
ground  that  the  defendant's  promise  was  without  consideration?  The 
remark  of  Bayley,  J.,  to  the  effect  that  upon  payment  by  the  debtor  to  the 
transferee,  the  transferor's  debt  would  he  discharged,  ought  to  have  exploded 
the  whole  doctrine  that  it  must  be  discharged  at  the  time  of  the  promise  to 
pay.  In  Fairlie  v.  Denton,  8  Barnewall  and  Cresswell,  395,  and  2  Manning 
and  Ryland,  353,  A.  D.  1828,  the  Court  of  King's  Bench  determined  that 
where  it  did  not  appear  that  a  defined  and  ascertained  sum  was  due  to  a 
person,  drawing  an  order  on  his  alleged  debtor,  at  the  time  when  the  latter 
promised  to  pay  it,  the  holder  could  not  enforce  the  promise.  The  doubt 
here  arose  whether  the  work  had  so  far  progressed,  under  a  contract  for 
building  certain  houses,  which  had  been  entered  into  between  the  defend- 
ants and  the  person  drawing  the  order,  (whereby  the  defendants  were  to  pay 
in  certain  instalments  as  the  work  progressed),  that  the  drawer  of  the  order 
was  entitled  to  any  further  instalments.  But  in  Crowfoot  v.  G-urney,  9 
Bingham,  372,  A.  D.  1832,  a  similar  contract  had  been  made  between  the 
defendant  and  a  builder  who  had  since  become  bankrupt;  and  the  work  had 
been  completed ;  but  the  precise  amount  payable  to  the  builder  could  not  be 
ascertained  without  measurement ;  thereupon  the  builder  gave  an  order  to 
one  of  his  creditors  upon  the  defendant,  for  the  payment  of  whatever  was 
due  to  hira ;  upon  presentation  of  which  the  defendant  promised  the  creditor 
to  pay  him  when  the  amount  should  be  ascertained.  After  the  measurement 
was  made,  but  before  payment, the  builder  became  bankrupt ;  and  the  assignees 
brought  this  suit,  to  recover  the  sum  payable  to  him  by  the  contract.  It 
was  held  that  they  could  not  recover;  because  there  was  an  equitable  assign- 
ment to  the  creditor,  and  he  had  the  right  to  go  into  equity  to  compel  a 
formal  assignment.  Tindal,  C.  J.,  said  that  the  creditor  appeared  to  have 
looked  to  the  defendant  alone,  and  to  have  abstained  from  any  application  to 
the  bankrupt;  but  the  other  judges  did  not  mention  that  circumstance  ;  and 
Alderson,  J.,  thought  the  case  exactly  parallel  with  Hodgson  v.  Anderson. 


Collateral  Undertakings.  523 

aenting  that  precise  state  of  facts,  will  be  presently  cited  ; 
and  whatever  question  may  arise  at  common  law,  respect- 
In  Tibbitts  V.  George,  5  Adolphns  and  Ellis,  107,  A.  D.  1836,  Lord  Denman, 
speaking  of  the  equitable  interest  of  an  assignee  of  a  cliose  in  action,  said 
(on  page  115):  "As  to  express  assent,  it  is  undoubtedly  hold,  that  in  order 
to  give  an  action  at  law,  the  debtor  must  consent  to  the  agreed  transfer  of 
the  debt,  and  that  there  must  be  some  consideration  for  his. promise  to  pay 
it  to  the  transferee,  but  in  equity  it  is  otherwise."  The  correct  rule,  upon 
principle,  is  to  be  found  in  the  opinion  delivered  by  Martin.  B.,  in  the  recent 
case  of  Liversidge  v.  Broadbent,  4  Hurlstone  and  Norman,  603,  and  28  Law 
Journal,  N.  S.,  Exchequer,  332,  decided  A.  D.  1859.  There  it  appeared  that 
one  Clapham,  a  builder,  was  indebted  to  the  plaintiff,  as  acceptor  of  two 
bills  of  exchange,  one  of  which  was  dishonored,  and  the  other  not  yet 
payable,  amounting  together  to  113/.  13."!. ;  and  that  Clapham  was  erecting 
some  cottages  at  Wetherby,  for  the  defendant  under  a  contract  with  him,  by 
virtue  of  which  he  was  entitled  to  receive  about  1201.  The  plaintiff,  the 
defendant  and  Clapham  met,  and  Clapham  signed  a  document  saying,  "  I 
hereby  agree  to  authorize  "  the  defendant  to  pay  to  the  plaintiff  113/.  13s.,  the 
amount  of  the  acceptances,  also  other  expenses  upon  the  bills  and  interest, 
"  towards  ray  account  for  building  the  cottages,  at  Wetherby,  Mr.  Broadbent 
to  debit  my  account  with  the  above  money,"  and  the  plaintiff's  receipt  to  be 
binding  between  Clapham  and  the  defendant  in  the  contract.  The  defend- 
ant wrote  at  the  foot  of  this  document  "Acknowledged,  Stephen  Broad- 
bent." And  this  action  was  brought  upon  that  agreement,  the  declaration 
setting  it  forth  specially,  and  containing  also  a  count  for  money  payable,  and 
upon  an  account  stated.  At  the  trial  it  was  objected  that  there  was  no  con- 
sideration for  the  defendant's  promise,  and  thereupon  the  plaintiff  was  non- 
suited; and  he  afterwards  obtained  a  nil'  nisi  to  enter  a  verdict  in  his 
favor.  The  rule  was  discharged  after  argument,  all  the  Barons  present 
delivering  opinions.  Pollock,  C.  B.,  said  that  the  debt  due  from  the  defend- 
ant to  Clapham  was  not  transferred  to  the  plaintiff  by  the  document;  and 
the  debt  due  from  Clapham  to  the  plaintiff  was  not  extingui.shed ;  he  also 
thought  that  what  the  defendant  wrote  at  the  foot  of  the  document  did  not 
amount  to  any  agreement  whatever  on  his  part.  Martin,  B.,  said  that  there 
are  two  legal  principles  which  have  never  been  departed  from;  the  first,  that 
at  common  law  a  debt  cannot  be  assigned,  ,so  as  to  give  the  assignee  a  right 
to  sue  for  it  in  his  own  name,  except  in  the  ease  of  a  negotiable  instrument; 
and  the  other  that  a  promise  cannot  be  enforced  without  a  consideration. 
That  assuming  that  the  defendant  did  promise  to  pay  the  money  to  the 
plaintiff,  there  was  no  consideration  for  the  promise;  if  the  document 
meant  that  the  debt  from  Clapham  to  the  defendant  was  immediately  extin- 
guished, there  would  be  a  consideration ;  but  here  there  was  only  a  consent 
that  it  should  be  extinguished,  when  the  money  should  be  paid  to  the  plaintiff. 


524  Collateral  Uistdertakings.  [Ch.  xv. 

ing  t-lie  right  of  the  promisee  to  maintain  an  action  upon 
the  promise,  they  seem  to  command  general  acquiescence 


He  added:  "No  doubt  a  debtor  may,  if  he  thinks  fit, promise  to  pay  his  debt 
to  a  person  other  than  his  cseditor,  and  if  there  is  any  consideration  for  the 
promise  he  is  bound  to  perform  it.  But  here  there  was  none  whatever. 
There  was  no  agreement  to  give  time,  or  that  the  debt  of  Clapham  should 
be  extinguished  —  no  indulgence  to  him  or  detriment  to  the  plaintiff.  There 
was  nothing  in  the  nature  of  a  consideration  moving  from  the  plaintiff  to  the 
defendant,  but  a  mere  promise  by  the  defendant  to  pay  another  man's  debt." 
Bramwell,  B.,  doubted  whether  the  Chief  Baron  was  correct  in  supposing 
that  there  was  no  agreement  by  the  defendant,  and  put  his  judgment  upon 
the  grounds  stated  by  his  brother  Martin ;  namely,  that  at  common  law  a 
chose  in  action  is  not  assignable,  and  here  there  was  no  consideration  for 
the  promise  to  pay  Clapham's  debt.  He  quoted  approvingly  the  early 
authorities,  to  the  effect  that  the  consideration  must  move  from  the  plaintiff, 
and  that  if  either  the  defendant  or  a  stranger  derived  a  benefit,  from  any 
act  done  by  the  plaintiff,  at  the  request  of  the  defendant,  it  would  suffice  as 
a  consideration.  But  ''  here  the  plaintiff  was  under  no  obligation  to  do  any 
act,  or  to  forbear  or  to  suffer  any  inconvenience."  Watson,  B.,  said  that  the 
first  count  of  the  declaration  alleged  that  the  plaintiff  and  Clapham  accepted 
the  agreement  in  discharge  of  their  debts,  and  the  averment  was  necessary, 
'•  for  all  the  cases  proceed  on  the  ground  that  the  debt  due  from  the  third 
party  to  the  plaintiff  was  extinguished,  and  therefore  there  was  a  good  con- 
sideration moving  from  him  to  support  the  defendant's  promise."  Here 
there  was  no  extinguishment  of  Clapham's  debt,  and  nothing  to  prevent  the 
plaintiff  from  suing  Clapham.  There  was  therefore  a  total  want  of  con- 
sideration for  the  defendant's  promise.  This  decision  was  mentioned  approv- 
ingly in  the  subsequent  case  of  Noble  v.  The  National  Discount  Company, 
5  Hurlstone  and  Norman,  225,  where  it  was  said  by  Martin,  B.,  that  all  the 
court  were  anxious  to  decide  the  case  in  favor  of  the  plaintiff,  but  it  did  not 
quite  reach  the  line.  But  the  Common  Pleas  in  the  recent  case  of  Cochrane 
V.  Green,  9  Common  Bench  Reports,  N.  S.,  448,  A.  D.  1860,  (S.  C,  30  Law 
Journal,  N.  S.,  C.  P.,  97;  9  Weekly  Reporter,  124;  3  Law  Times,  N.  S.,475; 
7  Jurist,  N.  S.,  548),  adhered  to  the  old  ruling.  There  the  defendant  pleaded 
several  pleas  to  a  declaration  in  assumpsit,  the  seventh  and  eighth  of*  which 
were  pleaded  as  partial  defences ;  each  of  them  being  to  the  effect  that  the 
plaintiff  was  indebted  to  a  third  person,  and  the  defendant,  at  the  plaintiff's 
request,  agreed  with  the  plaintiff's  creditor  to  pay  him  the  sum  due  to  him, 
and  the  creditor  "agreed  to  accept  the  defendant  as  his  debtor  instead  of 
the  plaintiff."  There  was  a  separate  demurrer  to  each  plea;  and  the  court 
gave  judgment  then  on  for  the  plaintiff,  holding  that  the  creditor  had  received 
the  defendant's  pr(  mise  only  as  collateral  security,  and  there  was  nothing  to 
estop  him  from  suing  the  plaintiff.     But  the  pleas  did  not  set  out  any  con- 


Collateral  Undertakings.  625 

upon  the  question  arising  under  the  statute.    And  it  would 
seem  to  be  very  clear  upon  principle,  that  although  the  letter 


sideration  whatever,  as  between  the  plaintiff  and  his  creditor,  nor  indeed 
any  valid  consideration  between  the  defendant  and  the  creditor.  Still  most 
of  the  reports  make  the  Chief  Justice  (Erie)  and  Williams.  J.,  say  that 
nothing  short  of  the  plaintiff's  discharge  would  sustain  the  plea.  Of  this 
case  it  may  also  be  remarked  that  the  facts  disclosed  by  the  pleas  were  much 
stronger  to  show  a  discharge,  than  those  disclosed  by  the  evidence  in  either 
Wilson  V.  Coupland  or  Lacy  v.  McNeile.  Some  cases  in  the  United  States, 
mostly  of  an  early  period,  sustain  this  doctrine ;  and  a  recent  New  York  case 
seems  to  have  proceeded  upon  the  same  principle.  In  Rupp  v.  Blanchard, 
34  Barbour,  627  (A.  D.  18G1),  the  plaintiff  sued  to  recover  a  debt  contracted 
by  the  defendant  to.  the  firm  of  Lawson  and  Carll ;  and  the  facts,  as  found 
by  a  referee,  were  (briefly)  that  Lawson  and  Carll,  against  whom  ihe  plaintiff 
had  recovered  a  judgment,  "  made  a  verbal  agreement"  with  him  that  they 
would  "turn  over  and  as^^ign"  to  him  the  debt  due  to  them  by  the  defend- 
ant, to  be  applied,  when  collected  by  the  plaintiff,  to  the  payment  of  the 
judgment;  and  at  the  same  time  handed  to  him  a  bill  of  items  of  the  account, 
without  any  written  order  or  transfer  of  the  debt ;  which  the  defendant 
subsequently  promised  to  pay  to  the  plaintiff,  after  making  certain  deductions 
therefrom.  Upon  these  facts  the  referee  held  as  matter  of  law,  that  the 
defendant  was  entitled  to  judgment ;  and  a  judgment  in  his  favor  was 
affirmed  upon  appeal  to  the  general  term  of  the  Supreme  Court.  The 
material  portion  of  the  opinion  is  as  follows:  "Although  there  may  be  .in 
assignment  of  a  chose  in  action  by  parol,  yet  to  constitute  such  an  assign- 
ment, it  must  be  shown  that  the  owner  surrendered  all  control  over  it,  and 
had  made  an  absolute  appropriation  of  it.  And  where  a  debtor  agrees  to 
assign  to  his  creditor  a  claim  which  he  has  against  another;  in  order  to  make 
it  a  valid  assignment,  the  creditor  must  relinquish  his  claim  against  the 
owner  of  the  chose  in  action.  Otherwise  the  agreement  is  without  con- 
sideration, and  cannot  be  construed  even  into  an  equitable  assignment  of  the 
claim."  But  it  was  held  in  two  earlier  cases  in  the  same  State,  that  an 
authority,  given  by  a  debtor  to  his  creditor,  to  collect  a  debt  due  to  him, 
and  apply  the  proceeds,  when  collected,  to  the  payment  of  the  debt  of  the 
person  giving  the  authority,  amounts  to  an  equitable  assignment  of  the  first 
mentioned  debt.  Canfield  v.  Monger,  12  Johnson,  34G ;  Taylor  v.  Bates, 
5  Cowen,  376.  But  Ford  v.  Adams,  2  Barbour,  349,  in  the  same  State,  and 
Benson  v.  Walker,  5  Harrington  (Delaware),  110,  both  decided  A.  D.  1848, 
apparently  afford  some  countenance  to  the  doctrine  that  the  intermediate 
debts  must  be  extinguished,  in  order  to  render  binding  a  promise  to  pay  a 
debt,  where  there  was  no  actual  assignment  of  it,  but  merely  an  order  to 
pay  to  another.  But  it  is  well  settled  in  the  United  States  that  a  debtor's 
promise,  for  a  valuable  consideration,  to  pay  a  debt  to  a  transferee  thereof 


526  Collateral  Undertakings.  [Ch.  xv. 

of  the  statute  might  include,  its  spirit  would  also  exclude 
all  cases,  where  the  promisor  and  promisee  contract  with 
reference  to  the  fulfilment  of  the  promise,  either  directly 
or  by  reimbursing  the  promisor,  out  of  a  similar  fund ; 
although  the  promise  might  have  been  couched  in  the 
terms  of  a  general  undertaking  to  pay  the  debt.  But 
there  is  sufficient  conflict  in  the  decisions  upon  this  point, 
to  render  it  a  matter  of  considerable  embarrassment  to 
frame  any  rule  upon  the  subject,  as  containing  a  generally 
recognized  principle  of  law. 

§  520.  This  embarrassment  is  increased  by  the  fact  that 
those  cases  which  admit  the  general  principle  to  be  sound, 
are  not  entirely  of  accord  respecting  the  distinctive  terms 
of  the  rule  in  which  it  should  be  embodied ;  and  thence 
arises  a  discussion,  which  embraces  also  the  question  what 
is  the  true  rule  to  be  derived  from  those  cases,  where  a 
verbal  promise  to  pay  the  debt  of  another  was  sustained, 
which  had  for  its  consideration  the  surrender  of  a  lien  or 
other  security,  available  to  the  promisee  for  the  collection 
of  the  debt.     It  has  been  argued,  with  no  little  force,  that 


is  valid,  and  entitles  the  latter  to  maintain  an  action  in  his  own  name ;  and 
the  weight  of  American  authority  is  decidedly  to  the  effect,  that  it  is  valid 
without  any  new  consideration.  Compton  v.  Jones,  4  Cowen,  13 ;  Lang  v. 
Fiske,  2  Fairfield  (Maine),  385 ;  Gordon  v.  Downey,  1  Gill  (Maryland),  41 ; 
Allstan  V.  Contee,  4  Harris  and  Johnson  (Maryland),  351;  Barger  v.  Collins, 
7  Harris  and  Johnson  (Maryland),  213,  219 ;  Mount  Olivet,  etc.,  Company  v. 
Shubert,  2  Head  (Tennessee),  116;  Jessel  v.  Williarasburgh  Insurance  Com- 
pany, 3  Hill  (New  York),  88;  Smith  v.  Berry,  18  Maine,  122;  Warren  v. 
Wheeler,  21  Maine,  484;  Creel  v.  Bell,  2  J.  J.  Marshall  (Kentucky),  309; 
Matheson  v.  Crain,  1  McCord  (South  Carolina),  219 ;  Crocker  v.  Whitney, 
10  Massachusetts,  3 IG  ;  Mowry  v.  Todd,  12  Massachusetts,  281 ;  Currier  v. 
Hodgdon,  3  New  Hampshire,  82;  Morse  v.  Bellows,  7  Now  Hampshire, 
549,  555;  RoUison  v.  Hope,  18  Texas,  44G;  Moar  v.  Wright,  1  Vermont, 
57;  Bucklin  v.  Ward,  7  Vermont,  195;  Hodges  v.  Eastman,  12  Vermont, 
358;  Stiles  v.  Farrar,  18  Vermont,  444.  For  a  case  very  similar  to  Lilly  v. 
Hays,  where,  upon  substantially  the  same  facts,  it  was  held  that  the  plaintiff 
was  entitled  to  recover,  both  at  common  law  and  under  the  statute  of  frauds, 
see  Wyman  v.  Smith,  2  Sandford,  331,  A.  D.  1849,  in  the  New  York  Superior 
Court. 


Collateral  Undertakings.  627 

they  belong  to  tlie  same  class,  with  the  cases  where  the 
promise  was  based  upon  a  fund  received  from  the  debtor. 
But  those  who  maintain  that  proposition,  do  not  agree 
respecting  the  principle  which  governs  the  supposed  com- 
prehensive class. 

§  521.  The  conflict  of  authority  upon  this  subject  is  well 
illustrated  by  two  very  recent  decisions,  each  proceeding 
from  a  tribunal  commanding  great  respect  through- 
out the  United  States.  (6)  These  two  adjudications  agree 
in  holding  that  both  these  descriptions  of  cases  constitute 
one  class ;  but  they  are  flatly  in  contradiction  to  each 
other,  with  respect  to  the  very  foundation  of  the  rule  which 
controls  it.  One  entirely  repudiates  the  idea  that  there  is 
any  rule  based  upon  a  fund ;  contending  that  all  rightly 
determined  cases,  where  such  a  rule  was  supposed  to  con- 
trol, depended  upon  the  proposition  that  where  the  lead- 
ing object  of  the  promisor  was  to  benefit  himself,  the 
promise  is  not  within  the  statute.  The  other  denies  that 
there  is  any  rule  depending  on  the  leading  object  of  the 
promisor;  and  holds  that  all  rightly  determined  cases, 
where  it  was  supposed  to  control,  depended  upon  the 
existence  of  a  fund.  On  the  other  hand  numerous  cases 
hold  that  the  two  classes  are  distinct ;  but  they  are  far 
from  being  entirely  of  accord,  with  respect  to  the  true 
rule  which  governs  either. 

§  622.  It  is  needless  to  say,  that  under  such  circum- 
stances, the  elementary  writer  would  endeavor  in  vain  to 
ascertain  the  true  rule  from  precedents  merely.  Pro- 
nouncing, as  we  are  bound  to  do,  an  opinion  based  upon 
what  appears  to  be  the  weight  of  reasoning,  as  derived  from 
the  arguments  advanced  upon  either  side,  and  the  weight 
of  authority,  as  derived  from  all  the  adjudications ;  we 
reject  both  the  cases  in  question,  and  all  others  to  the 
same  effect,  as  far  as  they  insist  that  the  two  classes  are 

(b)  Furbish  v.  Goodnow,  98  Massachusetts,  296,  post,  §  563,  and  Fullam  v. 
Adams,  37  Vermont,  391,  post,  §  620. 


628  COLLATERAJL   UNDERTAKINGS.  [Cll.  XV. 

the  same ;  holding  them  to  be  distinct  from  each  other, 
and  that  each  is  governed  by  its  own  peculiar  rule.  That 
which  governs  the  class  now  to  be  examined,  is  the  seventh 
of  our  series,  namely  : 

RULE  SEVENTH. 

A  promise  to  pay  the  pre-existing  debt  of  a  third  perBon  to  the  promisee,  is  not  within  the 
statute,  if  the  substantial  effect  of  its  fulfilment  will  be  to  discharge  the  debt,  out  of  a  fund 
furnished  to  the  promisor  by  the  debtor,  in  contemplation  of  whioh  the  promise  wag 
made. 


ARTICLE  I. 

Origin  and  effect  of  the  rule ;  English  cases  recognizing  the  principle  which  it  embodies. 

§  523.  In  most  of  the  cases  which  will  be  considered  in 
this  chapter,  the  action  was  founded,  either  upon  a  prom- 
ise made  to  the  creditor,  at  the  time  when  the  fund  was 
delivered  to  the  promisor  by  the  debtor,  or  upon  a  subse- 
quent promise  to  the  creditor,  without  any  new  considera- 
tion proceeding  from  him.  It  has  been  shown  in  preceding 
portions  of  this  volume,  that  as  the  common  law  is  admin- 
istered in  England,  a  stranger  to  the  consideration  cannot, 
in  general,  maintain  an  action  upon  a  contract ;  and  this 
doctrine  has  prevented  the  foregoing  rule  from  obtaining 
much  recognition  in  that  country.  Still  it  is  derived  from 
English  cases,  the  principle  of  which  has  been  modified, 
when  a  modification  was  required,  in  accordance  with  the 
understanding  which  prevails  in  the  United  States,  respect- 
ing the  creditor' s  right  to  enforce  such  a  contract,  although 
the  consideration  proceeded  entirely  from  the  debtor. 

§  524.  The  principle  was  very  clearly  stated,  although 
applied  to  a  debt  thereafter  to  be  created  ;  and  a  question 
incidentally  arising,  which  we  shall  hereafter  have  occa- 
sion to  examine,  was  correctly  disposed  of,  in  a  nisi  prius 
case  before  Lord  Ellenborough,  Ardern  v.  Rowney,  § 
Espinasse,  254,  A.  D.  1804.  There  one  Alder  had  applied 
to  the  plaintiff  to  discount  a  check  for  lOOZ.  drawn  by 
Alder  upon  the  defendant,  but  before  advancing  the  money 
the  plaintiff  sent  his  clerk  to  the  defendant  to  know  if  the 
check  would  be  honored,  and  the  latter  said  that  it  would 


Art.  I.]  COLLATEEAL   UNDERTAKINGS. 

be  honored,  as  he  was  in  Alder's  debt200Z.;  the  clerk  then 
said  tliat  as  the  check  was  post  dated,  it  could  not  be 
recovered,  and  tln^  defendant  aiiswci-cd  that  did  not  sif;nify, 
and  it  sliould  be  paid  ;  wher(.'Ui)on  tlie  i)laintiir  advanc(.'d 
the  money.  At  the  trial  it  was  admitted  that  the  jDlaintiif 
could  not  recover  upon  the  check ;  and  the  defendant 
objected  that  he  could  not  recover  upon  the  parol  request 
to  advance  the  money,  and  promise  to  repay  it;  as  the 
promise  was  within  the  statute.  But  Lord  Ellenborough, 
C.  J.,  said  that  if  it  was  an  agreement  to  pay  the  amount 
of  any  money  which  the  plaintift'  might  advance  to  Alder, 
the  case  would  be  within  the  statute ;  but  it  appeared  to 
him  that  this  was  an  appropriation  of  part  of  tlie  money 
which  the  defendant  said  he  owed  Alder,  and  that  the 
plaintiff  could  recover.  It  was  then  suggested  by  the 
defendant's  counsel,  that  the  plaintiff  could  not  recover 
beyond  the  money  actually  due  to  Alder  by  the  defendant, 
and  he  offered  to  show  that  the  defendant  was  mistaken 
in  saying  that  it  was  200^. ;  to  which  Lord  Ellenborough 
assented  ;  and  evidence  was  accordingly  produced  to  show 
that  the  real  balance  was  80Z.,  for  which  sum  the  plaintiff 
had  a  verdict. 

§  625.  Tlie  same  principle  would  have  very  satisfactorily 
disposed  of  a  more  recent  case,  where  the  court  neverthe- 
less ignored  it,  and  put  the  decision  upon  a  more  ques- 
tionable ground.  In  Dixon  v.  Hatfield,  10  Moore,  42, 
A.  D.  1825,  the  i)laint)ffs  sued  as  assignees  in  bankruptcy 
of  one  Moore,  upon  a  written  agreement  of  the  defendant, 
to  the  effect  that  he  would  pay  Moore  50Z.  for  timbei*  to 
a  certain  house,  "out  of  the  money  that  I  have  to  pay 
AVilliam  West,  provided  West's  work"  is  completed;" 
and  it  appeared  at  the  trial,  that  West  had  undertak(m  to 
complete  the  carpenter's  work  on  the  house  fcjr  tlie  defend- 
ant, and  find  all  the  materials ;  but  being  unable,  for  want 
of  funds,  to  procure  timber,  it  was  fni'nislied  by  Moore 
upon  tlie  defendant's  signing  the  agreement.  The  jury 
having  found  a  verdict  for  the  plaintiff,  the  defendant 
moved  for  a  rule  nisi  to  set  aside  the  verdict,  because  the 
G7 


630  COLLATEEAL   UNDERTAKINGS.    '         [Ch.  XV. 

agreement  did  not  express  the  consideration ;  but  the  court 
refused  any  rule.  Opinions  were  delivered  seriatim  by  all 
the  judges  ;  but  the  decision  was  placed  upon  the  ground 
that  it  was  a  purchase  of  the  property  by  the  defendant, 
no  credit  having  been  given  to  West,  and  consequently  that 
West  was  not  liable,  (a)  But  it  may  be  doubted  whether 
the  verdict  could  have  been  sustained  on  that  ground,  as 
it  is  hardly  to  be  supposed  that  the  plaintiff  intended  to 
lose  his  property  altogether,  in  case  West  did  not  com- 
plete the  work  ;  and  nothing  appears  to  have  been  left  to 
the  jury  upon  the  question  whether  any  credit  was  given 
to  West.  The  fact  that  the  defendant  agreed  to  pay  out 
of  the  moneys  due  to  West  was  entirely  disregarded ;  and 
the  condition  annexed  to  the  promise  was  treated  by  the 
court  as  a  mere  limitation  of  the  period  of  the  credit. 

§  526.  That  a  promise  in  terms  to  apply  a  fund  there- 
after to  be  received  from  the  debtor,  to  the  discharge  of 
a  debt  incurred  on  the  faith  thereof  is  not  within  the 
statute,  was  settled  by  the  judgment  of  the  court  of  Ex- 
chequer in  Andrews  v.  SmiM,  2  Crompton,  Meeson  and 
Roscoe,  627,  A.  D.  1835.(5)  There  the  declaration  stated 
in  substance  that  one  Hill  was  employed  to  do  work  on 
certain  houses  ;  and  the  defendant  was  employed  as  sur- 
veyor over  him,  and,  as  such,  was  to  receive  and  pay  over 
to  Hill  the  moneys  to  be  paid  to  him  for  his  work ;  and 
the  defendant  undertook,  in  consideration  that  the  plaint- 
iff would  furnish  to  Hill  materials  for  the  work,  to  pay  him 
"out  of  such  moneys,  received  by  the  defendant,  as  afore- 
said, as  should  become  due  to  the  said  J.  Hill,"  if  he  would 
procure  an  order  from  Hill  for  that  purpose  ;  that  he  did 
procure  and  present  such  an  order  and  furnish  materials  ; 
and  that  the  defendant  afterwards  had  funds  with  which  to 

(a)  This  was  the  view  taken  by  Park  and  Gaselee,  J.  J.,  and  apparently 
concurred  in  by  Best,  C.  J.,  of  the  question  arising  under  the  statute;  but 
Gaselee,  J.,  also  thought  that  the  defendant  would  have  been  liable,  if  credit 
had  been  given  to  West.  Burrough,  J.,  gave  no  special  reason  for  concur- 
rence.    The  case  is  veiy  imperfectly  reported  in  2  Bingham,  439. 

(h)  S.  C,  1  Gale,  335;  Tyiwhitt  and  Granger,  173. 


Art.  I.]  Collateral  Undertakings.  631 

pay  the  same,  but,  etc.  To  wliicli  the  defendant  pleaded, 
with  other  matters,  that  there  was  no  writing,  etc.,  and  the 
plaintift*  demurred  to  the  plea.  Judgment  was  rendered 
for  the  plaintiff  on  the  demurrer,  on  the  ground  that  it 
did  not  appear  that  Hill  became  liable  to  the  plaintiff ;  and 
also  on  th(^  principle  above  mentioned.  Upon  that  point 
Lord  Abinger,  C.  B.,  remarked  that  if  the  defendant 
contracted,  not  to  pay  nilFs  debt  out  of  his  own  funds, 
but  only  faithfully  to  apply  Hill's  funds  for  that  purpose, 
when  they  should  come  to  his  hands,  that  contract  would 
not  be  within  the  operation  of  the  statute.  Parke,  B., 
also  delivered  an  opinion  concurring  on  both  points  ;  and 
with  them  the  other  barons  concurred  generally,  (c) 

§  527.  In  all  the  preceding  cases  the  promise  was  to  pay 
a  debt,  to  be  thereafter  contracted  by  the  third  person  wpon 
the  faith  thereof.  The  principle  is  precisely  the  same, 
where  the  promise  was  to  pay  a  debt  theretofore  con- 
tracted ;  but  it  does  not  seem  to  have  been  recognized  in 
England,  when  cases  presenting  that  feature  have  been 
before  the  courts.  Those  where  the  promisor  received 
moneys  from  the  debtor,  to  be  paid  to  the  creditor  *,  and 
those  where  he  undertook  to  pay  to  the  promisee  a  debt 
due  by  himself  to  the  third  person,  in  discharge  of  a  debt 
due  by  the  third  person  to  the  promisee,  have  been  made 
to  depend,  as  far  as  the  statute  was  in  question,  upon  a 
different  principle  ;  and  have  been  fully  examined  hereto- 
fore, (d^)  The  door  is  entirely  closed  in  England  by  the 
doctrine  already  mentioned,  to  the  recognition  of  another 
class  of  cases,  which,  in  the  United  States,  is  quite  large, 
and  depends  entirely  upon  this  principle  ;  nann^ly,  where 
a  tripartite  agreement  was  made,  whereby  the  promisor, 
in  consideration  of  a  fund  then  placed  in  his  hands  by  the 
debtor,  undertook  with  the  creditor  to  pay  tlie  debt. 

§  528.  But  in  the  series  of  important  English  decisions, 
which  we  shall  have  occasion  to  cite,  in  examining  the  origin 

(c)  And  see  Hodgson  v.  Anderson,  cited  ante,  §§  515,  516. 

(d)  Cliapler  fourteenth,  article  fourth. 


532  Collateral  Undertakings.  [Ch.  xv. 

of  the  next  succeeding  nile,(c)  there  are  some,  where  the 
result  might  well  have  been  made  to  depend  exclusively 
upon  the  principle  now  under  consideration.  In  the  pro- 
cess of  settlement  of  the  principle,  upon  which  it  was 
ultimately  ruled  that  they  depended,  reasons  were  fre- 
quently assigned  by  different  judges  for  holding  that  the 
particular  promises  were  not  within  the  statute,  bearing  a 
close  analogy  to  the  proposition  embodied  in  our  seventh 
rule.  The  doctrine  stated  in  some  of  those  cases,  that 
where  a  person  has  received  property  subject  to  a  prior 
lien  in  favor  of  the  creditor,  a  promise  to  pay  the  debt,  in 
consideration  of  the  waiver  of  that  lien,  is  not  within  the 
statute,  because  the  promisor  was  the  holder  of  a  fund 
charged  with  an  incumbrance  existing  in  favor  of  the 
promisee,  is  in  reality,  with  the  exception  of  the  statement 
of  the  consideration,  one  of  the  corollaries  derived  from 
this  rule.  And  it  is  believed  that  the  nature  of  the  consid- 
eration is  not  an  essential  fact  upon  which  the  principle 
depends.  But  in  the  references  there  made  to  the  prop- 
erty, as  a  fund  from  which  to  pay  the  debt,  it  was  gener- 
ally regarded  as  having  proceeded  from  the  creditor, 
through  the  process  of  waiving  his  lien.  This  inference 
involved  so  much  straining  of  the  palpable  facts,  in  order 
to  accommodate  them  to  a  legal  theory,  that  it  failed  to 
survive  the  test  of  time  ;  and  in  England,  the  various,  and 
sometimes  inconsistent  propositions  advanced  in  those 
cases,  have  apparently  become  cryetallized  into  the  doc- 
trine, that  the  promise  is  valid,  because  the  previous  lia- 
bility of  the  promisor's  property  is  equivalent,  for  the 
purposes  of  the  statute,  to  a  previous  personal  liability  on 
his  part  for  the  debt. 

§  529.  The  cases  to  which  we  allude  are  so  fully  ab- 
stracted in  the  next  succeeding  chapter,  with  reference  to 
this  question,  as  well  as  the  one  there  discussed,  that  it 
will  be  unnecessary,  in  this  connection,  to  dwell  at  any 
length  upon  this  feature  of  them.      An  examination  of 

(e)  Chapter  sixteenth,  article  first. 


Art.  I.]  Collateral  Undertakings.  633 

tliem  will  shed  considcrabh^  light,  not  only  upon  the  gen- 
eral principle  now  under  discussion,  but  also  upon  some 
subordinate,  but  important  questions  which  attend  its  ap- 
plication. Chief  among  these  is  one,  which  will  be  made 
the  subject  of  a  separate  article  of  this  chapter  ;  namely, 
whether  the  promisee  can  recover  damages  for  a  breach 
of  the  promise,  exceeding  the  amount  of  the  fund,  if  it 
should  prove  to  be  insufficient  to  pay  the  debt.(/) 

§  530.  It  remains  only  to  add,  before  proceeding  to  the 
examination  of  the  American  cases,  that  it  is  not  necessary, 
for  the  purpose  of  satisfying  this  rule,  that  the  fund  should 
be  applicable  to  the  discharge  of  the  debt,  in  the  same 
form  in  which  the  promisor  received  it  from  the  debtor. 
On  the  contrary,  in  most  of  the  cases,  the  transaction  be- 
tween the  debtor  and  the  promisor  assumed  the  form  of  a 
sale,  or  other  transfer  of  property,  by  the  former  to  the 
latter  ;  upon  the  agreement  that  the  transferee  would  pay 
to  the  creditor,  in  discharge  of  the  debt,  or  otherwise 
apply  to  the  use  of  the  transferor,  the  whole  or  some  part 
of  the  consideration  of  the  transfer.  Tlie  distinction  be- 
tween cases  of  this  character,  and  those  where  the  promise 
was  to  pay  to  the  creditor  a  debt  due  by  the  promisor  to 
the  debtor,  although  apparently  narrow,  is  very  clearly 
defined.  For  in  this  class  of  cases  the  promisor  did  not 
become,  (at  least  not  until  a  breach  of  his  contract,)  the 
debtor  of  the  transferor ;  inasmuch  as  the  promise  was 
to  apply  the  consideration,  in  the  particular  manner  pointed 
out  by  the  agreement  between  them.  Evidently  the  prac- 
tical effect  of  the  transaction  is  the  same,  as  if  so  much 
money  of  the  debtor  had  been  placed  in  the  hands  of  the 
promisor;  and  accordingly  the  consideration  is  very 
properly  treated  as  a  fund  in  his  hands. 

(/)  See  article  iv. 


534  Collateral  Undertakings.  [Ch.  xv. 


ARTICLE  II. 

Where  the  promisor,  having  the  fund  in  hand,  undertook  to  pay  a  debt  due  to  the  promisee 
from  the  person  who  furnished  the  fundi 

§  531,  When  the  fund  was  placed  in  the  hands  of  the 
promisor,  for  the  express  purpose  of  paying  therewith  a 
debt  due  to  the  promisee  by  the.  person  from  whom  it  pro- 
ceeded, the  case  frequently  presents  some  feature,  which 
determines  the  validity  of  the  promise,  at  common  law 
and  under  the  statute  of  frauds,  without  resorting  to  the 
principle  now  under  examination.  Hence  many  of  those 
cases  have  been  incidentally  considered  under  some  of 
the  former  divisions  of  our  subject.  Of  those  which 
remain  to  be  considered  in  this  connection,  some  are  cases 
where  the  promisor,  the  promisee  and  the  creditor  were 
parties  to  the  contract.  They  will  be  examined,  Avith 
others  possessing  that  feature,  under  the  next  succeeding 
article.  Those  cases  where  the  creditor  seeks  to  enforce  a 
trust,  strictly  so  called,  also  fall  within  this  principle  ;  but 
they  demand  only  a  passing  notice.  It  is  well  settled  that 
the  statute  of  frauds  has  no  application  to  the  duty  or 
implied  promise  of  an  assignee  for  the  benefit  of  creditors, 
faithfully  to  administer  the  fund  and  to  pay  over  its  pro- 
ceeds, in  accordance  with  the  terms  of  the  trust ;  although 
the  effect  of  his  doing  so  is  to  discharge,  in  whole  or  in 
part,  the  debts  of  the  assignor.  This  principle  was  stated, 
and  some  of  the  authorities  which  sustain  it  were  cited, 
in  a  previous  chapter,  (a) 

§  532.  So  where  an  express  promise  was  made  to  the 
creditor,  founded  upon  the  duty  or  implied  obligation  of 
the  assignee,  as  in  Merrill  v.  Engleshy,  28  Vermont,  150, 
A.  D.  1855.  This  was  a  contest  between  the  unsecured 
creditors  of  an  insolvent  debtor,  and  certain  sureties  of  the 
insolvent,  together  with  an  assignee,  to  whom  property, 
vvhich  the  plaintiff  attempted  to  reach  by  a  trustee  process, 
had  been  conveyed  by  the  insolvent  for  their  protection. 

(o)  See  ante,  note  to  §  101. 


Art.  II.]  Collateral  undertakings.  636 

And  upon  the  question,  whether  the  assignment  had  been 
sufficiently  ratified,  before  the  service  of  the  trustee  process 
upon  t]i('  assignee,  it  was  held  that  an  express  ])roniiso, 
without  any  new  consideration,  made  by  the  assignee  to 
the  sureties,  to  the  effect  that  he  would  keep  the  property 
for  their  security,  was  valid  without  writing. 

§  633.  But  questions  of  difficulty,  upon  which  the  cases 
are  somewhat  in  conflict,  arise  when  there  was  no  specific 
trust  in  favor  of  the  plaintiff ;  but  he  founds  his  action 
upon  an  express  promise  to  pay  the  debt,  made  by  a  per- 
son holding  a  fund  proceeding  from  his  debtor.  In  such 
a  case,  it  would  seem  upon  principle,  although  some  au- 
thorities hold  otherwise,  that  in  order  to  sustain  the  prom- 
ise at  common  law,  it  must  be  founded  upon  some  new 
and  distinct  consideration.  It  is  impossible  to  reconcile 
all  the  decisions  upon  the  subject  of  the  application  of  the 
statute  to  such  a  promise ;  but  it  is  believed  that  the  weight 
of  reason  and  authority  sustain  the  three  propositions 
which  follow  :  1.  That  where  the  promisor  absolutely  con- 
trols the  fund,  but  his  application  thereof  to  the  payment 
of  the  debt  due  to  the  promisee,  will  acquit  him  of  a  duty, 
which  he  owed  to  the  person  who  furnished  it,  the  promise 
is  not  within  the  statute.  2.  That  where  he  controls  the 
fund,  but  there  is  nothing  to  show  that  he  owes  any  duty 
of  which  he  will  be  acquitted  by  paying  the  promisee,  the 
promise  is  merely  to  pay  the  debt  of  a  third  person  out  of 
a  particular  portion  of  his  own  property,  and  it  is  con- 
sequently within  the  statute.  3.  That  where  he  does  not 
absolutely  control  the  fund,  the  promise  is  within  the 
statute,  because  there  is  nothing  to  show  that  its  fulfil- 
ment will  not  result  in  paying  the  debt  of  a  third  person 
out  of  his  own  means. 

^  534.  To  commence  with  the  cases  maintaining  the  first 
of  these  propositions.  In  Madden  v.  McCray,  1  ^fcCord 
(South  Carolina),  48G,  A.  D.  1821,  the  defendant's  brother, 
who  was  out  of  the  State,  was  indebted  to  the  plaintiff; 
and  the  plaintiff  applied,  through  an  agent,  to  the  defend- 


636  Collateral  Undeetakings.  [Ch.  xv. 

ant  for  payment ;  saying  that  he  would  attach  if  payment 
was  not  made.  Thereupon  the  defendant  said  to  the 
plaintiff's  agent,  that  he  had  effects  which  had  been  placed 
in  his  hands  by  his  brother  to  make  himself  safe  as  his 
surety,  and  also  for  the  payment  of  his  (the  brother' s)  debts  ; 
and  if  the  plaintiff  would  wait  until  fall,  he  (the  defendant) 
would  pay  the  debt.  Upon  this  promise  the  plaintiff 
"declined"  taking  out  an  attachment.  It  was  objected 
that  the  promise  was  within  the  statute,  but  the  plaintiff 
had  judgment ;  and  the  judgment  was  affirmed  upon  ap- 
peal, on  the  ground,  that  as  the  defendant  possessed  a 
fund  applicable  to  the  payment  of  the  debt,  whether  it  was 
specially  designed  for  payment  of  the  plaintiff's  debt  or 
not,  his  promise  was  obligatory  upon  him.(&) 

§  535.  The  same  principle,  although  the  case  is  some- 
what obscure,  apparently  controlled  the  decision  of  Clark 
V.  Hall,  6  Halsted  (New  Jersey),  78,  A.  D.  1829.  There 
the  plaintiff  and  the  defendants  had  conflicting  claims 
upon  a  quantity  of  hats,  belonging  to  a  person  who  was 
debtor  to  both  of  them,  the  plaintiff  having  the  earlier 
order  for  the  delivery  of  the  hats  to  him,  and  the  defend- 
ants having  taken  possession  of  them,  under  a  bill  of  sale 
of  a  later  date  ;  the  precise  purpose  of  the  order  and  bill 
of  sale  not  appearing  in  the  case,  except  that  each  was 
given  to  enable  the  party  receiving  the  same  to  effect  pay- 
ment of  his  demand.  Under  the  supposition,  on  the  part 
of  both  parties,  that  the  value  of  the  hats  exceeded  the 
amount  of  both  the  debts,  a  verbal  agreement  was  made 
between  them,  that  the  defendants  should  sell  them,  and 
that  the  parties  should  share  the  proceeds  equally,  until 
the  plaintiff's  claim,  which  was  the  smaller  of  the  two, 


(i)  The  judge  who  delivered  the  opinion  of  the  appellate  court  was  the 
same  before  whom  the  cause  was  tried  ;  and  he  said  that  it  appeared  in  his 
notes,  that  the  defendant  acknowledged  that  the  fund  was  placed  in  his 
hands  for  the  purpose  of  paying  the  plaintiff;  but  the  "brief"  (bill  of  excep- 
tions) expressly  stated,  that  he  "  did  not  say  that  he  had  effects  to  pay  this 
debt." 


Art  11  ]  Collateral  Undertakings.  537 

slioiild  be  paid  ;  but  altlioiigli  tlu^  hats  sold  for  twice  the 
amount  of  the  plaintiff's  demand,  they  did  not  sell  for 
enough  to  pay  both  the  debts.  The  plaintiff  brought  this 
action  to  recover  the  amount  of  his  demand,  and  at  the 
trial  he  succeeded,  notwithstanding  the  defendants'  objec- 
tion that  the  promise  was  within  the  statute.  Upon  certi- 
orari the  judgment  was  affiruK^d,  the  court  merely  saying, 
that  in  their  opinion  "the  undertaking  of  the  defendants 
below  was  not  within  the  statute  of  frauds." 

§  636.  So  in  Russell  v.  BahcocJc,  14  Maine,  138,  A.  I). 
1836,  the  plaintiffs  had  recovered  judgment  against  one 
Sprague,  and  the  defendant  said  to  them  that  he  was  to 
pay  the  judgment,  and  would  pay  it  if  the  plaintiffs 
would  withhold  the  execution.  Afterwards  he  repeated  the 
promise  several  times,  but  finally,  upwards  of  a  year  after 
the  judgment  was  recovered,  he  said  that  he  would  not 
pay  the  whole  of  it.  The  plaintiffs,  upon  the  faith  of 
the  defendant' s  promise,  had  forborne  execution  during  the 
whole  period,  and  now  commenced  this  action  ;  and  after 
its  commencement,  the  defendant  said  that  he  should  lose 
nothing,  as  Sprague  had  secured  him,  but  had  directed 
him  not  to  pay  the  whole.  The  court  held  that  the  prom- 
ise was  an  original  one,  without  assigning  the  reasons  for 
its  conclusion  upon  that  point.  This  case  has  been  sup- 
posed to  liold  that  the  forbearance  alone  sufficed  to  take 
the  promise  out  of  the  statute,  and  the  head  note  of  the 
reporter  is  to  that  effect. 

§  537.  But  in  Hilton  v.  Dinsmore,  21  Elaine,  410,  A.  P. 
1842,  the  court  said  that  Russell  v.  Babcock  was  decided 
upon  the  same  grounds,  which  controlled  the  decision  then 
pronounced.  There  it  was  shown  at  the  trial  that  the 
plaintiff  held  notes  against  one  Dryden,  and  th('  defend- 
ant sent  him  word  that  "Dryden  had  put  property  in  his 
hands,  wherewith  he  could  help  him  to  his  pay,  and  that 
he  would  do  it,  if  he  would  not  sue  the  notes;"  to  which 
the  plaintiff  answered,  agreeing  "to  be  easy."  The 
plaintiff  was  nonsuited  at  the  trial ;  but  the  Supreme 
68 


638  Collateral  Undertakings.  [Ch.  xv. 

Court  granted  a  new  trial,  saying  that  if  Russell  v.  Bab- 
cocJc  was  decided  upon  the  ground  that  the  forbearance 
sufficed  to  take  the  promise  out  of  the  statute,  it  was  not 
law  ;  but  there,  as  well  as  in  this  case,  there  was  evidence 
from  which  the  jury  might  have  inferred,  that  a  fund  had 
been  placed  in  the  defendant' s  hands  by  the  debtor,  "with 
a  view  to  the  pajrment  of  this  debt ;"  and  such  a  consid- 
eration, together  with  the  promise  on  the  part  of  the 
plaintiff  to  forbear,  would  suffice  to  support  the  action. 

§  538.  In  Robins  on  v.  Oilman,  43  New  Hampshire,  485, 
A,  D.  1862,  the  question  arose  upon  a  setoff  to  the  demand 
of  the  plaintiff,  who  sued  as  administratrix,  the  defendants 
being  also  sued  as  administrators.  It  appeared  that  the 
plaintiff's  intestate  had  had  large  dealings  with  one 
Rollins,  who  had  failed,  claiming  that  the  plaintiff's 
intestate  owed  him  a  large  sum  of  money,  which  the 
latter  denied  ;  and  two  of  Rollins'  s  creditors  had  taken  out 
trustee  process  against  the  plaintiff' s  intestate,  whereon  he 
had  been  examined  at  length  respecting  his  transactions 
with  Rollins,  and  was  unwilling  to  answer  further. 
The  defendants'  intestate  was  a  creditor  of  Rollins,  and 
proposed  to  take  out  a  similar  process  against  the  plaint- 
iff' s  intestate ;  thereupon  a  conversation  took  place 
between  the  plaintiff' s  intestate,  and  the  person  then  acting 
as  attorney  for  the  defendants'  intestate,  the  purport  of 
which  was  rather  vague  ;  but  the  Supreme  Court  held  that 
the  jury  might  have  found,  that  it  was  to  the  effect,  that 
in  consideration  that  no  trustee  process  should  be  taken 
out  against  him,  the  plaintiff' s  intestate  promised  that  he 
would  pay  the  debt.  The  judge  at  the  trial  ruled  that 
the  evidence  did  not  sustain  the  setoff,  because  of  a 
variance  and  because  of  the  statute  of  frauds  ;  and  accord- 
ingly he  directed  a  verdict  for  the  plaintiff  for  the  full 
amount  of  her  demand. 

§  539.  A  new  trial  was  granted  by  the  Supreme  Court 
upon  an  exception  to  this  ruling.  Bell,  C.  J.,  delivering  a 
very  able  and  instructive  opinion,  from  which  we  have 


Art.  ir.]  Collateral  Undertakings.  639 

had  occasion  previously  to  quot(\(c)  Upon  the  precise 
question  now  under  examination,  tlie  learned  Chief  Justice 
summed  uj)  his  conclusions  as  follows:  "He"  (Robinson) 
"was  assumed  by  Gilman  to  have  in  his  hands  property 
or  funds,  for  which  he  might  be  charged  as  the  trustee  of 
Rollins.  If  he  had  such  funds  or  property,  and  of  suffi- 
cient amount  to  pay  Gilman's  debt,  the  waiver  by  Gilman 
of  his  right  to  commence  a  trustee  suit  would  form  such 
a  consideration  for  his  promise,  as  would  make  it  valid 
without  writing,  according  to  the  principles  adopted  by 
the  authorities.  The  promise  to  pay  tlic^  debt  was  an  ad- 
mission, or  might  be  regarded  as  an  admission  by  the  jury, 
that  he  had  property  for  which  he  might  be  chargeable  to 
the  amount  of  these  notes,  as  was  held  in  Jackson  v. 
Rayner,  12  Johnson,  291."  (^) 

§  540.  To  these  we  add  a  case  where  the  defendant' s 
promise  was  held  to  be  valid,  without  any  new  considera- 
tion, under  the  peculiar  circumstances  attending  his  receipt 
of  the  fund.  In  Shatier  v.  Adams,  10  Iredell  (iS'orth  Caro- 
lina), 13,  A.  D.  1848,  the  defendants  and  one  B.  entered 
into  a  copartnership  to  run  a  line  of  stages,  and  B.  put 
into  the  common  stock,  at  a  specified  price,  a  wagon  which 
he  had  purchased  from  the  plaintiff  for  the  use  of  the  firm, 
and  for  which  he  had  given  his  individual  note ;  then  B.  sold 
out  his  interest  to  the  defendants.  It  did  not  appear 
that  there  was  any  express  agreement  that  they  should 
pay  the  note  ;  although  in  the  settlement  of  their  accounts, 
he  informed  them  that  the  note  was  outstanding,  and  for 
that  reason  he  was  not  entitled  to  any  credit  for  tlie  wagon  ; 
to  which  the  defendants  assented,  and  the  wagon  was  left 
in  the  common  stock  and  worn  out  in  the  defendants'  ser 
vice.  Subsequently  the  defendants  promised  to  the 
plaintiff  to  pay  the  note,  and  it  was  surrendered  by  the 
plaintiflf  to  B.  A  judgment  for  the  plaintiff  upon  a  ver- 
iict  was  affirmed  on  appeal.     The  court  held  that  it  was 

(c)  See  §  184,  and  note  to  §  65. 

(d)  See  this  case  in  §  545,  post. 


640  Collateral  Undertakings.  [Ch.  xv. 

unnecessary  to  inquire,  whether  the  defendants  would  be 
liable  upon  the  contract  of  purchase ;  that  their  opinion 
was  "founded  upon  the  agreement  made  by  the  parties  to 
take  the  wagon  and  pay  the  plaintiff  for  it,"  and  conse- 
quently "the  contract  on  which  the  action  is  brought," 
was  an  original  contract  not  within  the  statute,  founded 
upon  a  sufficient  consideration. 

§  541.  These  cases  maintain  very  clearly  and  satisfac- 
torily the  first  of  the  three  propositions  which  we  have 
indicated  as  tests  of  the  validity  of  the  promise,  and  it  is 
believed  that  those  which  proceed  on  the  contrary  prin- 
ciple, were  not  correctly  decided.  Such  an  error,  it  is 
thought,  was  committed  upon  this  point  in  Emerick  v. 
Sanders,  1  Wisconsin,  77,  A.  D.  1853 ;  although  the  decis- 
ion might  perhaps  have  been  supported,  had  it  been  put 
upon  the  ground  that  the  promise  was  not  obligatory  at 
common  law,  for  want  of  consideration  ;  and  upon  the 
proposition  that  there  was  no  privity  between  the  parties, 
the  case  is  an  authority  upon  one  side  of  the  disputed 
question  thence  arising,  (e)  There  the  evidence  at  the 
trial  was  to  the  effect  that  the  defendant' s  son  had  placed 
property  in  her  hands  for  the  purpose  of  paying  his  debts, 
and  particularly  the  debt  which  he  owed  to  the  plaintiff ; 
and  had  then  left  the  country.  Afterwards  she  promised 
the  plaintiff,  without  any  new  consideration,  to  pay  him 
the  amount  of  the  debt  which  the  son  owed  him  ;  saying 
that  the  latter  had  left  plenty  of  property  in  her  hands, 
with  which  to  pay  his  debts,  or  this  debt.  The  plaintiff 
had  a  verdict  in  the  court  below,  but  the  Supreme  Court 
reversed  the  judgment  rendered  thereon ;  holding  that 
the  promise  was  within  the  statute  ;  because,  whether  the 
defendant  received  the  goods  as  a  bailee,  or  as  a  purchaser 
upon  a  promise  to  pay  for  them,  there  was  no  privity  be- 
tween herself  and  the  plaintiff ;  and  any  subsequent  prom- 
ise to  the  plaintiff,  without  the  concurrence  of  the  original 
debtor,  was  necessarily  collateral  to  his  indebtedness. 

(e)  See  chapter  twelfth,  section  426. 


Art.  II.]  Collateral  Undertakings.  641 

§  542.  The  case  of  Johnson  v.  Morris^  21  Georgia,  238, 
A.  D.  1857,  also  contains  a  ruling  in  conflict  with  this 
principle;  although  the  decision  might  be  sn])ported,  on 
the  ground  that  there  was  no  consideration  for  the  defend- 
ant's promise  to  the  plaintiff".  There  the  action  was 
brought  to  recover  a  balance  of  account  for  the  liire  of  a 
negro  ;  and  the  evidence  tended  to  show  that  one  Jones 
hired  the  negro  from  the  plaintiff*  for  one  year  at  a  speci- 
fied price  ;  that  soon  afterwards  he  transferred  the  negro 
to  the  defendant,  who  agreed  with  him  to  pay  the  plaint- 
iff"; and  that  the  defendant  afterwards  agreed  with  the 
plaintiff",  to  pay  him  ;  and  paid  part  of  the  stipulated  price. 
At  the  trial  in  the  court  below,  the  jury  found  a  verdict 
for  the  plaintiff,  under  the  instructions  of  the  judge ;  but 
the  judgment  was  reversed  by  the  Supreme  Court  upon  a 
writ  of  error.  It  is  to  be  inferred  from  the  report  that  the 
only  questions  raised  at  the  trial,  and  argued  before  the 
Supreme  Court,  related  to  the  competency  of  certain  testi- 
mony off"ered  to  impeach  a  witness,  and  to  the  terms  of 
the  contract  between  the  parties  to  this  suit.  The  Supreme 
Court  declined  to  pass  upon  either  question,  saying,  with 
respect  to  the  construction  of  the  contract,  "Let  it  be 
either  way,  it  was  a  parol  understanding  to  pay  the  debt 
of  another,  and  therefore  void.  Let  Morris  sue  Jones ; 
and  Jones,  Johnson;  and  if  the  latter"  (sic)  "  be  insolvent, 
Johnson  can  be  garnisheed." 

§  543.  In  Westheimer  v.  PeacocTc,  2  Iowa,  528,  A.  D. 
1856,  there  was  no  proof  of  the  existence  of  any  fund,  and 
the  case  may  be  well  supported  on  that  ground,  although 
the  distinction  was  not  clearly  taken  in  the  opinion. 
There  it  appeared  upon  the  trial  that  the  plaintiff"' s 
assignors,  before  the  assignment  to  the  ])hiiiitiff,  were 
about  to  commence  an  action  agamst  the  defendant"  s  son 
upon  a  note  made  by  him,  and  to  attach  his  property 
therein ;  when  the  defendant  requ(^sted  them  to  forbear, 
saying  "  that  he  was  getting  his  son's  property  into  his 
hands,  and  that  he  would  pay  the  note."  The  promisees 
forbore  accordingly,  and  in  consequence  thereof  the  debt 


542  CoLLATEEAL  Undeetakings.  [Ch.  XV. 

was  lost ;  but  the  report  says  that  there  was  nothing  to 
show,  that  the  defendant  did  get  his  son's  property  into 
his  hands.  The  plaintiff  had  a  verdict ;  and  a  judgment 
thereon  was  reversed  on  appeal,  the  Supreme  Court  holding 
that  the  promise  was  within  the  statute  ;  it  being,  in  their 
opinion,  a  common  contract  of  guaranty,  made  upon  the 
consideration  of  forbearance  to  the  original  debtor. 

§  544.  The  case  of  Simpson  v.  Patten^  4  Johnson,  422, 
decided  A.  D.  1809,  which  has  frequently  been  cited  as  an 
authority  against  the  validity  of  any  verbal  promise  to 
pay  a  creditor,  founded  upon  a  fund  proceeding  from  the 
debtor,  is  distinguishable  from  those  previously  cited,  and 
comes  within  either  the  second  or  the  third  proposition. 
It  was  brought  before  the  New  York  Supreme  Court  by  a 
certiorari  to  a  justice's  court.  In  the  court  below,  the 
declaration  counted  upon  a  promise  of  the  defendant,  that 
if  the  plaintiff  would  forbear  to  sue  one  J.  S. ,  the  defend- 
ant would  pay  the  plaintiff  the  amount  of  the  note  of 
J.  S.  to  the  plaintiff,  which  was  then  due,  ' '  as  soon  as  he 
could  sell  an  acre  of  land  belonging  to  the  said  J.  S.  which 
he  was  authorized  to  sell,"  and  which  the  declaration 
further  averred  that  he  had  sold.  Evidence  of  a  verbal 
agreement  to  that  effect,  having  been  admitted  in  the  court 
below,  the  Supreme  Court  reversed  a  judgment  for  the 
plaintiff,  holding  that  the  promise  was  within  the  stat- 
ute of  frauds.  The  case  is  meagerly  reported,  and  no 
reason  was  given  for  the  decision,  except  that  the  promise 
was  to  pay  a  third  person' s  debt ;  but  it  did  not  appeal 
what  was  the  nature  of  the  authority  of  the  defendant  to 
sell  the  property,  or  whether  he  controlled  the  proceeds 
after  the  sale.  Still  it  must  be  acknowledged  that  the 
evidence  ran  very  close  to  that,  upon  which,  in  the 
other  cases,  the  court  permitted  the  jury  to  infer  that  the 
defendant  controlled  the  fund,  subject  to  a  trust  to  pay 
the  debt  of  the  person  who  furnished  it. 

§  545.  But  Jackson  v.  Jiayner,  12  Johnson,  291,  A,  D, 
1815,  in  the  same  court,  admits  of  no  distinction,  which 


Art.  II.]  Collateral  Undertakings.  643 

will  reconcile  it  with  tlie  others  ;  and  it  must  be  regarded 
as  having  been  overruled  by  later  decisions  ;  and  perhaps 
as  having  proceeded  upon  an  erroneous  view  of  tlie  pre- 
ceding case.  This  was  also  an  action  which  came  into  the 
Supreme  Court  on  certiorari  to  a  justice's  court.  It 
appeared  from  the  testimony  in  the  court  below,  that  the 
plaintiff  had  commenced  an  action  by  warrant  against 
Micliael  Jackson,  the  defendant' s  son,  upon  a  note ;  and 
when  the  constable  was  about  to  serve  the  warrant,  the 
defendant  told  him  not  to  serve  it,  as  lu?  would  pay  the 
debt  if  it  was  an  honest  one ;  upon  whicli  the  phiintiff 
withdrew  the  suit.  Soon  afterwards  the  defendant  saw 
the  constable  again,  and  requested  him  to  tell  the  pLaintiff 
"to  give  himself  no  further  trouble  about  it,  for  lie  would 
pay  the  debt,  as  he  had  taken  his  son  Michaer  s  property, 
and  meant  to  pay  his  honest  debts."  Upon  this  evidence, 
the  justice  gave  judgment  for  the  plaintiff,  overruling  the 
defendant's  objection  that  the  promise  was  within  the 
statute  of  frauds.  The  opinion  of  the  Supreme  Court  was 
as  follows:  "The  fair  construction  of  the  parol  proof  in 
this  case  is,  that  the  defendant  below  had  received  an 
assignment  of  his  son' s  property,  in  trust  for  the  payment 
of  his  son' s  debts  ;  and  from  that  fund  he  promised  to 
pay  the  debt  now  in  question.  He  is  to  be  regarded  as 
a  trustee  for  the  creditors  of  his  son,  and  his  absolute 
promise  to  this  creditor,  is  evidence  that  the  fund  was 
adequate.  But  the  original  debt  of  the  son  w^as  still  sub- 
sisting ;  and  according  to  the  decision  in  the  case  of  JSimj^- 
son  V,  Patten  and  the  authorities  there  cited,  it  seems 
well  settled,  that  a  promise  to  ])ay  the  debt  of  a  third 
person  must  be  in  wa-iting,  notwithstanding  it  is  made 
on  a  sufficient  consideration.  The  judgment  must  there- 
fore be  reversed." (/') 

(/)  See  the  later  New  York  cases  in  the  next  article.  In  Barker  v.  Buok- 
lin,  2  Denio,  45,  Jewett,  J.,  coinmentin<^  upon  Simpson  v.  Patten,  approves 
it,  on  the  ground  that  the  defemlant  had  not  sold  the  land  or  received  the 
proceeds,  when  he  made  the  promise;  but,  as  the  promise  was  expressly 
conditioned  upon  his  thereafter  sclHng  the  property,  the  force  of  part  of  this 
criticism    is    not   apparent.      However    it    is    true  that  the  declaration  did 


644  COLLATEKAL   UnDEKTAKIKGS.  [Ch.  XV. 

§  546.  The  case  of  Dllts  v.  ParTce,  1  Southard  (Nevv 
Jersey),  219,  A.  D.  1818,  recognizes  the  first  proposition, 
and  was  decided  upon  the  application  of  the  second.  On 
certiorari  from  the  judgment  of  a  justice  of  the  peace,  it 
appeared  from  the  return,  that  the  plaintiff's  claim  was 
that  he  had  become  surety  upon  a  note  for  one  Huffman, 
deceased ;  that  a  judgment  had  been  recovered  upon  the 
note  against  the  plaintiff;  that  the  defendant  "having  the 
property  of  Huffman  in  his  hands,  refused  to  deliver  it  up 
to  satisfy  the  judgment ;  and  that  the  defendant  agreed 
with  the  plaintiff  that  he  should  not  lose  the  money,  but 
that  he  would  pay  it."  At  the  trial  the  plaintiff  gave  evi- 
dence, "that  the  defendant  confessed  that  he  had  property 
of  Jacob  Huffman  in  his  hands  to  pay  the  debt."  The 
plaintiff  having  recovered  judgment,  the  defendant  sued 
out  a  certiorari,  upon  which  the  judgment  was  reversed  by 
the  Supreme  Court.  Southard,  J.,  delivering  the  opinion, 
said:  "The  phraseology  of  the  papers  does  not  make  it 
very  manifest,  how  the  defendant  obtained  possession  of 
the  property.  From  the  testimony  of  Johnson,  as  detailed 
by  the  justice,  it  might  perhaps  be  inferred  that  it  had 
been  put  into  his  hands  for  the  purpose  of  paying  his 
debt ;  and  if  this  were  so,  the  case  would  be  free  from  all 
doubt.  But  the  language  of  the  plaintiff  in  his  statement 
of  demand  contradicts  this  idea,  and  leaves  it  as  the  fair 
conclusion  that  he  came  into  possession  of  it,  without  any 

not  say  that  he  had  received  the  proceeds.  In  the  same  opinion  the  learned 
judge  also  approved  the  decision  in  Jackson  v.  Rayner.  But  in  the  earlier 
case  of  Watson  v.  Randall,  20  Wendell,  201,  Nelson,  C.  J.,  referring  to  the 
opinion  of  Savage,  C.  J.,  in  Farley  v.  Cleveland  (§  553),  said  that  there  the 
latter  evidently  doubted  the  soundness  of  both  of  those  cases,  because  in 
each  the  defendant  had  received  property  from  the  debtor  as  an  inducement 
to  the  undertaking;  a  doubt  manifestly  shared  by  him.  Comstock,  C.  J.,  in 
the  course  of  his  opinion  in  Mallory  v.  Gillett,  21  New  York,  412,  A.  D. 
1860,  frequently  referred  to  in  the  course  of  this  work,  cited  Simpson  v. 
Patten  without  disapprobation;  but  with  respect  to  the  other  case  he  saidr 
"  I  have  some  hesitation  in  citing  Jackson  v.  Rayner,  because  it  seems  to  me 
to  have  gone  too  far."  "  Upon  the  discrimination  made  in  the  later  cases, 
the  conveyance  of  the  property  to  the  defendant  was  a  new  consideration, 
moving  to  him  from  the  debtor,  and  made  the  promise  an  original  one." 


Art.  II. J  Collateral  "Undertakings.  545 

reference  to  the  payment  of  this  debt.  Was  then  the 
recovery  against  him  right  ?  I  think  not.  The  debt  due 
to  Parke"  (the  plaintiff  in  the  court  below)  "was  due 
from  Huffman.  He  or  his  representatives  were  originally 
liable  to  be  sued  for  it.  The  assumption  by  Dilts  to  pay 
was  clearly  within  the  statute  of  frauds.  It  was  a  prom- 
ise to  pay  the  debt  of  another."  Here  also  there  was  no 
allegation  or  proof  of  forbearance  against  Huffman,  or  any 
other  consideration  for  the  defendant' s  promise. 

§547.  Thecaseof-S'co^v.  T7iomas,l  Scammon (Illinois), 58, 
A.  D.  1832, (,^)  also  illustrates  the  application  of  the  second 
principle.  The  declamtion  alleged,  among  other  things, 
that  in  consideration  of  forbearance  to  sue  the  plaintiff's 
debtors,  the  defendant  agreed  that  if  the  debtors  did  not 
pay  the  plaintiff  by  the  next  court,  he  would  foreclose  a 
mortgage  which  he  held  upon  their  property,  and  the 
plaintiff  might  buy  in  the  land  for  ^1.25  an  acre,  if  it  would 
not  sell  for  more  ;  and  after  satisfying  his  debt,  pay  the 
surplus  to  the  defendant,  but  that  the  defendant  did  not 
foreclose,  etc.  To  this  declaration  the  defendant  pleaded 
the  statute  ;  and  the  plaintiff  demurred  to  the  plea.  The ' 
court  below  gave  judgment  for  the  plaintiff  on  the  de- 
murrer, and  the  Supreme  Court  reversed  the  judgment. 
Wilson,  C.  J.,  after  dwelling  upon  the  fact  that  the  cir- 
cuity of  the  process  whereby  the  debt  of  another  was  to 
be  paid,  could  not  affect  the  question  whether  the  statute 
applied,  said  that  the  promise  was  in  effect  to  pay  the 
debt  out  of  a  particular  fund,  and  in  a  particular  way ; 
and  it  was  accordingly  held,  that  as  there  was  no  distinct 
consideration  for  the  promise,  moving  from  the  promisee 
to  the  promisor,  but  the  original  liability  of  the  debtors 
was  in  fact  the  only  moving  consideration,  the  promise 
was  within  the  statute,  and  the  defendant  was  entitled  to 
judgment  upon  the  demurrer. (^) 

(jr)  Cited  also  ante,  §  117. 

Qi)  The  intimation  that  a  new  and  distinct  consideration  would  take  the 
promise  out  of  the  statute,  was  in  accordance  with  a  doctrine  then  prevail- 
ing in  this  country,  but  now,  we  believe,  abandoned.     See  chapter  xvii. 
69 


546  Collateral  Undeetakin^gs.  [Ch.  xv. 

§  548.  The  third  principle  is  well  illustrated  by  Quin 
V.  Hanford,  1  Hill,  82,  A.  D.  1841,  in  the  New  York  Su- 
preme Court.  The  action  was  originally  brought  in  the 
New  York  Common  Pleas  ;  and  it  appeared  at  the  trial  that 
a  religious  society  had  made  a  contract  with  one  Dempsey 
for  work  to  be  done  on  its  church  edifice,  upon  which 
Dempsey  would  be  entitled  to  a  certain  sum  of  money, 
beyond  what  he  had  already  received,  when  the  work 
should  be  completed.  The  defendant  was  the  treasurer  of 
the  society ;  but  had  no  authority  to  pay  out  moneys  except 
upon  orders  countersigned  by  the  building  committee, 
of  which  he  was  one.  Dempsey,  being  indebted  to  the 
plaintiflf,  gave  him  an  order  upon  the  building  committee 
or  the  treasurer  ;  the  defendant,  as  treasurer,  then  having 
funds  in  his  hands,  applicable  to  the  payment  of  Dempsey, 
when  his  contract  should  be  completed  ;  and  on  presenta- 
tion of  the  order,  the  defendant  promised  to  pay  it  within 
a  few  days.  Soon  afterwards  the  work  was  completed. 
The  jndge  at  the  trial  charged  the  jury  that  the  plaintiff 
was  entitled  to  recover,  and  he  had  a  verdict,  upon  which 
judgment  was  rendered  in  the  Common  Pleas.  On  error, 
the  Supreme  Court  reversed  the  judgment ;  holding  that 
the  promise  was  void,  as  well  for  want  of  consideration, 
(the  plaintiff  not  having  promised  to  forbear,)  as  because 
it  was  within  the  statute.  Upon  both  points,  Bronson,  J., 
delivering  the  opinion  of  the  court,  said  that  the  case  bore 
some  analogy  to  those  where  an  executor  or  administrator 
was  held  to  be  liable  de  bonis  propriis,  upon  a  promise 
made  in  consideration  of  assets  ;  but  the  distinction  was, 
that  there  the  promisor  controlled  the  fund.  Here  the 
defendant  was  a  mere  bailee  or  depositary  of  the  society, 
having  no  direct  control  over  its  funds.  The  church  could 
have  directed  him  to  pay  any  other  creditor  in  preference 
to  Dempsey ;  or  it  could  have  recalled  the  fund  and 
placed  it  in  the  hands  of  another  agent,  {i) 

(t)  It  is  somewhat  hazardous  to  cite  any  modern  English  authorities  in 
connection  with  the  rule  now  under  examination,  but  there  is  one  case,  the 
decision  in  which,  as  far  as  it  relates  to  the  application  of  the  statute,  is  quite 


Art.  III.]         Collateral  Undertakings.  647 


ARTICLE  III. 

Where  the  reception  of  the  fnnd,  and  the  making  of  the  promise,  were  parts  of  an  agreement 
to  which  the  creditor,  the  original  dehtor,  and  the  promisor  were  parties. 

§  549.  It  will  be  remembered  that  in  discussing  the  ques- 
tion, whether  a  creditor  could  maintain  an  action  for  the 
breach  of  a  promise  to  pay  the  debt,  which  had  been  made 
to  his  debtor,  on  a  consideration  moving  from  the  latter, 
we  confined  ourselves  to  the  cases,  where  he  was  a  stranger 
to  the  agreement  and  to  the  cousideration ;  separating  them 

obscure  upon  any  other  ground,  but  very  intelligible  if  vre  suppose  it  to 
have  been  governed  by  the  third  of  the  principles  mentioned  in  §  533.  We 
refer  to  Morley  v.  Boothby,  10  Moora.  395,  and  3  Bingham,  107,  decided 
A.  D.  1825.  The  first  count  of  the  declaration  alleged,  in  substance,  that  in 
consideration  that  the  plaintiffs  would  sell  and  deliver  to  certain  persons, 
using  the  firm  name  of  William  Clark,  Son  &  Co.,  certain  goods,  etc.,  to  be 
used  in  and  about  building  St.  Philip's  church  at  Shefi&eld,  to  be  paid  for 'by 
a  bill  of  exchange  to  be  drawn  by  the  plaintiffs  upon  them,  particularly 
described,  the  defendants  undertook  "that  the  said  bill  should  be  paid,  when 
due,  out  of  such  moneys  as  the  defendants  should  receive,  before  the  said 
bill  should  become  due,  for  and  on  account  of  the  building  of  the  said 
church;"  that  the  plaintiffs,  confiding  in  the  promise,  did  afterwards  sell  and 
deliver  to  the  said  William  Clark,  Son  &  Co.,  goods,  etc.,  to  be  used  in  and 
about  the  building  of  said  church,  and  did  draw  their  bill  of  exchange  to 
the  terms  mentioned,  which  was  accepted,  and  afterwards  dishonored.  It 
was  further  alleged  that  "  although  the  defendants  received,  before  the  bill 
became  due,  and  from  thence  hitherto  had  had  sufiScient  moneys  for  and  on 
account  of  the  building  the  said  church  to  satisfy  the  said  bill,"  yet  they 
had  not  guarantied  the  payment  of  the  bill  or  paid  the  same.  There  were 
several  other  counts,  the  particulars  of  which  are  not  given,  except  that  it  is 
said  that  they  varied  the  terms  of  the  consideration  for  the  defendants' 
promise,  and  the  time  when  the  bill  matured.  To  all  these  the  defendants 
pleaded  that  there  was  no  writing,  etc.,  and  the  plaintiffs  in  their  replication 
set  out  a  writing  signed  by  the  defendants,  and  agreeing  that  the  draft 
(describing  it)  should  at  maturity,  "be  then  paid  out  of  money  to  be  received 
from  St.  Philip's  church."  The  defendants  interposed  a  special  demurrer  to 
the  replication,  on  the  ground  that  no  consideration  was  expressed  in  the 
writing.  The  court  gave  judgment  for  the  defendants  on  the  demurrer,  the 
principal  part  of  the  opinion  (by  Best,  C.  J.,)  relating  to  the  sufficiency  of 
the  writing.  The  learned  Chief  Justice  assumed  "that  the  instrument  was 
given  after  the  sale  was  made ;  but  as  this  is  inconsistent  with  the  only  count 
of  the  declaration  of  which   the  substance  is  given  in  the  reports,  it  is  pre- 


648  CoLLATEKAL  Undeetakings.  [Ch.  XV. 

from  those  where  he  was  a  party  to  the  agreement,  although 
a  stranger  to  the  consideration.  (<x)  Those  cases  of  the 
latter  description,  where  the  consideration  of  the  promise 
was  a  fund  placed  in  the  hands  of  the  promisor  by  the 
debtor,  will  form  the  subject  of  this  article.  The  Ameri- 
can authorities  recognized  the  right  of  the  promisee  to  sue 
in  this  class  of  cases,  even  before  the  doctrine  that  a 
stranger  could  enforce  a  contract,  made  for  his  benefit,  had 
obtained  much  recognition. 

§  550.  The  question  whether  the  statute  of  frauds  is 
applicable  to  the  promise,  is  essentially  diJfferent  in  the 
two  classes ;  for  in  this  class  the  promise  was  made  to  the 
creditor,  and  it  cannot  therefore  be  saved  from  the  opera- 
tion of.  the  statute,  upon  the  principle,  which  saves  the 
promise  in  the  other  class,  that  the  promisee  is  not  the  one 
to  whom  the  expression  "another  person"  applies.  The 
existence  of  the  fund  is  therefore  the  distinguishing  feature 
upon  which  the  promise  is  sustained,  when  it  was  verbal. 
And  although  the  weight  of  authority  in  the  United  States 
decidedly  favors  the  doctrine  that  it  is  sufficient  for  that 
purpose,  one  of  the  most  venerable  and  eminent  of  our 
tribunals  still  maintains  the  contrary  opinion  ;  and  some 
adjudications  in  other  courts  may  possibly  be  open  to  the 
same  construction.  (5) 

§  551.  In  New  York  the  rule  is  now  well  settled,  that 
agreements  of  this  description  are  not  within  the  statute ; 

sumed  that  the  allegations  to  that  effect  were  contained  in  the  other  counts. 
He  concluded  however  with  this  observation,  of  which  the  last  sentence  is 
equally  applicable  to  the  first  count :  "  No  benefit  or  advantage  accrued  to 
them "  (the  original  debtors)  "  from  that  instrument,  nor  did  the  plaintiffs 
suffer  any  detriment  or  inconvenience  in  consequence  of  the  execution  of  It; 
and  although  it  speaks  of  money  to  be  received  from  St.  Philip's  church, 
still  it  does  not  appear  that  the  defendants  had  any  particular  interest  in,  or 
would  be  in  any  degree  affected  by  such  money,"  or,  as  the  report  in  Bing- 
ham makes  him  say,  "  that  the  persons  subscribing  such  paper  had  any  thing 
to  do  with  any  such  money." 

(a)  See  §  395. 

(b)  See  post,  §§  563,  564,  and  note  at  the  end  of  this  article. 


Art.  III.]         Collateral  Undertakings.  649 

although  the  cases  of  Simpson  v.  Patten^  4  Johnson,  422, 
A.  D.  1809,  and  Jackson  v,  Rayner^  12  Johnson,  291, 
A.  D.  1815,  have  been  frequently  supposed  to  sanction  a 
contrary  opinion.  But  they  belong  among  the  cases  where 
a  verbal  promise  made  to  the  creditor,  after  the  receipt  of 
the  fund,  was  held  to  be  within  the  statute  ;  and  they  have 
been  commented  upon  in  the  preceding  article  in  that  con- 
nection, (c)  Probably  the  same  state  of  facts  was  presented 
in  Gold  V.  Phillips,  10  Johnson,  412,  A.  D.  1813,  where 
it  was  held  that  the  promise  was  not  within  the  statute. 
But  it  possessed  the  additional  feature  that  a  like  promise 
was  also  made  to  the  debtor,  at  the  time  of  the  receipt  of 
the  fund ;  and  as  the  promise  to  the  plaintiff  appears  not 
only  to  have  been  made  subsequently,  but  also  to  have 
lacked  consideration,  the  case  has  been  treated  as  depend- 
ing upon  the  agreement  between  the  defendant  and  the 
debtor ;  and  it  was  accordingly  examined  with  other  cases 
depending  upon  similar  agreements.  ((^)  But  it  is  cited 
again  here,  because  the  court  disposed  of  it  upon  the  hy- 
pothesis that  both  promises  were  part  of  one  transaction  ; 
and  it  is  therefore  perhaps  the  earliest  case,  in 'which  the 
principle  now  under  consideration,  was  sanctioned  by  a 
judicial  decision. 

§  552.  The  question  was  presented  squarely  for  the 
decision  of  the  New  York  Supreme  Court  in  Olmstead  v. 
Greenly,  18  Johnson,  12,  A.  D.  1820.  There  the  plaintiff 
declared  upon  an  agreement,  alleging  that  it  was  made  at 
his  request  and  by  his  procurement,  to  which  the  plaint- 
iff, the  defendant,  and  one  Bristol  were  parties ;  whereby 
Bristol  placed  in  the  hands  of  the  defendant  goods  and 
money,  to  an  amount  exceeding  a  debt  due  from  Bristol  to 
the  plaintiff,  and  a  dishonored  note  of  Bristol  and  one  Hig- 
gins,  upon  which  the  plaintiff  had  been  charged  as  indorser ; 
in  consideration  of  which  the  defendant  agreed  to  pay  the 
debt  and  the  note,  but  had  not  done  so.     The  defendant 

(c)  See.^§  544,  545. 

(d)  See  §§  404,  405. 


650  COLLATEBAL  UNDERTAKINGS.  [Ch.  XV. 

pleaded  the  statute,  and  the  plaintiff  demurred  to  the  plea. 
Judgment  was  rendered  upon  the  demurrer  for  the  plaint- 
iff; the  court  saying  that  this  was  "an  original  contract 
on  an  independent  consideration,  received  by  the  defend- 
ant, by  the  procurement  of  the  plaintiff.  The  plaintiff 
has  the  same  ground  of  action,  as  if  he  had  delivered  his 
own  goods  to  the  defendant,  as  the  consideration  of  the 
promise." 

§  553.  The  next  case,  which  has  attained  considerable 
celebrity,  was  Farley  v.  Cleveland,  4  Cowen,  432,  A.  D. 
1825,  affirmed  in  the  Court  of  Errors,  A.  D.  1827,  under 
the  title  of  Cleveland  v.  Farley,  9  Cowen,  639  ;  but  only 
the  opinion  delivered  in  the  Supreme  Court  has  been  pub- 
lished. Farley  sued  Cleveland  in  the  Common  Pleas; 
and  at  the  trial  he  offered  to  prove  that  one  Moon  delivered 
to  the  defendant  fifteen  tons  of  hay,  of  the  value  of  one 
hundred  and  fifty  dollars,  in  consideration  of  a  verbal 
promise,  then  made  by  the  defendant  to  the  plaintiff,  to 
pay  him  Moon' s  note  of  one  hundred  dollars  held  by  him  ; 
but  the  Common  Pleas  nonsuited  the  plaintiff,  on  the 
ground  that  the  promise  was  within  the  statute  of  frauds. 
The  judgment  thereon  was  reversed  in  the  Supreme  Court, 
Savage,  C.  J.,  delivering  an  opinion ;  in  which,  after  review- 
ing the  principal  cases  in  England  and  in  New  York,  he 
concluded  that  the  case  at  bar  was  similar  to  Gold  v. 
Phillips  and  Olmstead  v.  Greenly,  differing  from  the 
latter  only  in  the  particular  that  there  it  was  alleged  that 
the  transaction  was  accomplished  by  the  procurement  of 
the  plaintiff.  And  he  laid  down  the  general  rule  that  "in 
all  these  cases,  founded  upon  a  new  and  original  consid- 
eration of  benefit  to  the  defendant,  or  harm  to  the  plaintiff, 
moving  to  the  party  making  the  promise,  either  from  the 
plaintiff  or  the  original  debtor,  the  subsisting  liability  of 
the  original  debtor  is  no  objection  to  the  recovery,"  a 
proposition  which,  as  will  be  seen  in  the  two  succeeding 
chapters,  has  since  undergone  considerable  modification. 

§  554.  This  case  was  followed  by  Jennings  v.  Webster, 
7  Cowen,  256,  A.  D.  1827,  and  Ellwood  v.  Monk,  5  Wen- 


Art.  III.]         Collateral  Undertakings  651 

dell,  235,  A.  D.  1830 ;  in  each  of  which  the  Supreme  Court 
held  that  an  agreement  to  which  the  debtor,  the  plaintiif 
and  the  defendant  were  parties  ;  whereby  the  defendant,  in 
consideration  of  property  then  delivered  to  him  by  the 
plaintiff's  debtor,  sufficient  in  value  for  the  purpose, 
agreed  to  pay  to  the  plaintiff  the  debt,  was  not  within 
the  statute.  But  in  neither  case  was  this  proposition 
discussed  upon  principle,  the  court  evidently  regarding 
it  as  settled  by  the  former  adjudications. 

§  565.  The  case  of  Mather  v.  Perry,  2  Denio,  162,  A.  D. 
1846,  may  also  be  properly  included  in  this  class,  although 
the  decision  was  put  upon  a  different  ground,  which  makes 
it  sui  generis.  There  the  defendant  applied  to  one  Hewitt 
to  make  some  machine  frames,  for  which  he  proposed  to 
pay  Hewitt  in  lumber  ;  but  Hewitt  wished  to  be  paid  in 
goods  out  of  the  plaintiff's  store.  Thereupon  the  defend- 
ant, the  plaintiff  and  Hewitt  agreed  verbally  that  Hewitt 
should  make  the  frames  for  the  defendant ;  that  the  defend- 
ant should  pay  the  plaintiff  their  value  in  lumber ;  that  part 
of  the  value  of  the  lumber  should  be  applied  upon  a  debt 
due  from  Hewitt  to  the  plaintiff,  and  for  the  residue  he 
should  be  entitled  to  goods  out  of  the  plaintiff's  store. 
Hewitt  did  the  work,  and  the  defendant  refusing  to  pay 
the  plaintiff  according  to  the  agreement,  this  action  was 
brought  in  a  justice's  court,  and  the  plaintiff  recovered 
the  value  of  Hewitt's  work.  The  judgment  was  reversed 
by  the  Common  Pleas  ;  and  the  plaintiff  brought  error  to 
the  Supreme  Court,  where  the  judgment  of  the  Common 
Pleas  was  reversed,  and  that  of  the  justice  affirmed. 
Bronson,  C.  J.,  delivering  the  opinion  of  the  Supreme 
Court,  said  that  in  making  the  frames  Hewitt  was  the 
servant  of  the  plaintiff,  and  the  defendant' s  engagement 
was  not  to  pay  Hewitt' s  debt  to  the  plaintiff,  or  to  pay 
for  goods  which  the  plaintiff  should  deliver  to  Hewitt; 
but  to  pay  the  plaintiff  for  work  which  he,  by  Hewitt, 
should  do  for  the  defendant ;  that  it  was  wholly  unim- 
portant whether  the  plaintiff  had  paid  Hewitt ;  or  whether 
he  was  to  pay  him ;  or  whether  Hewitt  ever  got  his  pay. 


552  Collateral  Undertakings.  [Ch.  xv. 

But  it  is  a  very  strained  inference  to  call  Hewitt  the 
plaintiff's  servant,  as  he  was  manifestly  acting  in  his  own 
behalf ;  and  the  decision  can  be  much  more  logically  sus- 
tained upon  the  ground  that  his  labor  furnished  the  fund 
from  which  his  own  debt  was  to  be  paid ;  and  that  the 
goods  were  to  be  delivered  exclusively  upon  the  defend- 
ant's  credit. 

§  556.  Two  cases  in  the  New  York  Comman  Pleas, 
Cailleux  v.  Hall,  1  E.  D.  Smith,  o,  A.  D.  1850,  and  8tU- 
well  V.  Otis,  2  Hilton,  148,  A.  D.  1858,  also  affirm  the 
general  principle  that  a  tripartite  agreement  of  the  same 
general  character  as  those  in  question  in  the  cases  decided 
by  the  Supreme  Court  is  not  within  the  statute  ;  but  they 
do  not  present  any  features  requiring  a  detailed  abstract. 

§  557.  Passing  to  the  decisions  in  the  other  states,  we 
first  notice  Wait  v.  Waifs  Executor,  28  Vermont,  350, 
A.  D.  1856,  (e)  which  is  open  to  the  same  observations  as 
those  made  upon  Gold  v.  Phillips ;  a  promise  made  to 
the  debtor  at  the  time  of  the  conveyance  of  the  property, 
and  one  subsequently  made  to  the  creditor  without  a  new 
consideration,  having  been  treated  by  the  court  as  one 
transaction,  and  the  ruling  being  that  the  statute  of  frauds 
did  not  apply  to  it. 

§  558.  The  validity  of  these  tripartite  agreements  has 
also  been  recognized  by  some  recent  decisions  of  the 
Supreme  Court  of  Pennsylvania ;  a  ruling  which  is  some- 
what remarkable,  from  the  circumstance  that  the  same 
court  had  previously  held,  that  where  the  creditor  was  not 
a  party  to  the  agreement,  the  statute  of  frauds  prevents 
him  from  maintaining  an  action  upon  a  like  promise  made 
to  the  debtor.  (/)  In  the  earliest,  the  fund  was  placed  by 
the  debtor  in  the  hands  of  the  promisor  as  his  agent, 
before   the   promise  was   made ;    and    he   subsequently 

(e)  See  §  402. 

(/)  See  Shoemaker  v.  King,  ante,  §  423 


Art.  III.]         Collateral  Undertakings.  553 

directed  the  promisor  to  pay  his  creditor  out  of  the  fund. 
This  case  is  Stoudt  v.  Hine,  45  Pennsylvania,  30,  A.  D. 
1863.  There  the  defendant,  under  a  power  of  attorney 
from  one  Kallahan,  had  drawn  moneys  due  to  Kallahan 
upon  a  canal  contract ;  and  subsequently  the  plaintiff, 
the  defendant,  and  Kallahan  met;  Kallahan  and  the 
plaintiff,  after  some  dispute  as  to  the  amount  of  a  debt 
due  from  the  former  to  the  latter,  agreed  upon  a  cei"tain 
sum  as  the  amount  to  be  paid  to  the  plaintiff ;  and  there- 
upon the  defendant,  by  direction  of  Kallahan,  verbally 
agreed  with  the  plaintiff  to  pay  him  the  amount  so  fixed, 
which  was  less  than  the  sum  in  his  hands.  It  was  held 
by  the  Supreme  Court,  affirming  a  judgment  for  the 
plaintiff,  that  the  promise  was  not  within  the  statute.  It 
is  manifest  that  the  transaction  was  the  same  in  substance, 
as  if  the  agreement  to  pay  the  plaintiff  had  been  made  at 
the  time  of  the  deposit. 

§  559.  In  WMtcomh  v.  Kepliart,  50  Pennsylvania,  85, 
A.  D.  1865,  it  was  held,  as  in  Mather  v.  Perry,  that  an 
agreement  to  pay  for  work  thereafter  to  be  done  for  a 
third  person  was  not  within  the  statute,  where  the  consid- 
eration was  a  fund  thereafter  to  be  received  ;  but  here  it 
was  to  be  received  from  a  fourth  person  for  the  benefit  of 
the  third  ;  and  there  was  the  additional  peculiarity  that 
the  promisee  was  to  look  to  the  debtor  in  the  first  instance. 
The  question  arose  upon  a  case  stated  from  the  opinion 
of  the  court ;  and  the  facts,  as  far  as  any  question  arose 
under  the  statute,  were  as  follows  :  One  Goss  had  made 
a  contract  with  the  firm  of  Langdon  and  Diven,  whereby 
he  was  to  cut  from  their  land  and  deliver  to  them,  certain 
saw  logs,  at  a  specified  price :  and  afterwards  he  had  made 
a.  subcontract  with  the  plaintiffs  to  do  part  of  the  work, 
for  which  he  was  to  pay  them  a  certain  price.  The 
defendants  were  agents  of  Langdon  and  Diven,  and  were 
furnished  with  money  by  them  to  pay  Goss,  as  the  work 
progressed.  It  was  agreed  between  the  plaintiffs,  the 
defendants  and  Goss,  in  substance,  that  the  defendants 
would  pay  the  plaintiffs  for  their  work  the  price  to  be 
70 


664  Collateral  Undertakings.  [Ch.  xv. 

paid  to  tliem  by  Gross,  according  to  his  contract  with, 
them,  except  as  far  as  Goss  himself  should  pay  them ; 
and  that  they  would  retain  the  amount  which  they 
should  so  pay,  out  of  the  moneys  payable  to  Goss  under 
his  contract  with  Langdon  and  Diven.  As  this  was  con- 
strued by  the  court,  it  was  not  a  promise  to  pay  out  of 
moneys  to  be  furnished  by  Langdon  and  Diven,  but  to 
pay  absolutely,  looking  to  those  moneys  for  reimburse- 
ment ;  but  the  case  stated  found  that  they  had  such 
funds.  A  judgment  in  the  court  below  for  the  plaintiffs, 
upon  the  case  stated,  was  affirmed  on  error ;  the  Supreme 
Court  holding  that  "the  undertaking  of  the  defendants 
was  an  original  one  ;  the  debt  had  become  their  own." 

§  560.  An  agreement,  in  the  ordinary  form  in  such  cases, 
was  also  sustained  by  the  court  in  Olymer  v.  De  Young, 
54  Pennsylvania,  118,  A.  D.  1867,  wherein  is  to  be  noticed 
an  extraordinary  error  in  the  charge,  putting  the  decision 
upon  a  principle  entirely  inapplicable  to  the  facts.  This 
was  an  action  of  assumpsit  against  Clymer,  as  adminis- 
trator of  one  Frederick  Hunter ;  and  it  appeared  on  the 
trial,  that  one  Samuel  Hunter,  being  indebted  to  the  plaint- 
iff and  also  to  Frederick  Hunter,  sold  his  stock  of  goods 
to  the  latter,  in  payment  of  his  indebtedness  to  him,  and 
in  consideration  of  his  agreeing  to  pay  to  the  plaintiff  the 
money  due  to  her  by  Samuel.  There  was  other  evidence  of 
the  promise ;  and,  according  to  the  report,  the  judge  charged 
the  jury  that  "if  they  should  find  that  Samuel  Hunter 
was  indebted  to  the  plaintiff,  and  Frederick  had  become 
indebted  to  Samuel,  and  it  was  agreed  among  the  three 
that  Frederick  should  pay  to  her,  in  lieu  of  Samuel,  the 
amount  due  by  Samuel,  and  he  did  pay  a  part  but  not 
the  whole,  they  might  give  a  verdict  for  the  plaintiff  for 
the  balance."  The  jury  found  a  verdict  for  the  plaintiff; 
and  the  defendant  brought  a  writ  of  error  upon  the  judg- 
ment, relying  upon  the  objection  that  the  promise  was 
within  the  statute.  The  judgment  below  was  affirmed. 
Read,  J.,  delivering  the  opinion  of  the  court  as  follows : 
"The  simple  question  then  is,  was  the  agreement  within 


Art.  III.]  Collateral  Undertakings.  656 

the  provisions  of  this  section,  Samuel  V.  R.  Hunter,  as 
executor  of  De  Young's  estate,  received  moneys  belonging 
to  the  plaintiff,  which  were  i)ut  into  the  stock  of  his  store, 
and  belonged  to  her.  Being  indebted  to  the  decedent. 
Hunter  transferred  the  stock  to  him,  with  the  agreement 
that  out  of  tlie  stock  so  transferred,  the  decedent  sliould 
pay  the  plaintiff  the  amount  due  her.  This  arrangement 
was  made  and  agreed  to  by  Hunter,  the  decedent,  and  the 
plaintiff.  This  brings  the  case  clearly  within  Stoudt  v. 
Iliiie,  9  Wright,  30,  ((7)  as  the  fund  was  provided  for  by 
the  original  debtor,  whether  his  own  or  that  of  the  plaint- 
iff, to  pay  the  very  debt  which  the  decedent  promised  to 
pay,  and  which  promise  he  partly  fulfilled.  The  judge 
was  therefore  substantially  correct." 

§  561.  The  principle  of  these  cases  was  also  approved  in 
Nelson  v.  Hardy,  7  Indiana,  364,  A.  D.  1856,  where  it  was 
assigned,  with  other  reasons,  as  a  ground  for  taking  out  of 
the  statute,  a  verbal  agreement  between  the  plaintifis,  the 
defendants  and  one  Givens  ;  to  the  effect  that  the  plaintiffs 
would  forbear  against  Givens  upon  a  debt  which  he  owed 
them  ;  and  in  consideration  thereof,  the  defendants  would 
pay  the  debt,  out  of  the  next  moneys  to  become  due  from 
them  to  Givens,  upon  a  subcontract  for  work  upon  a 
railroad,  for  which  the  defendants  were  the  principal 
contractors,  whereby  Givens  was  to  be  paid  upon  monthly 
estimates  of  his  work.  It  appeared  in  this  case  that  the 
defendants  had  in  fact  deducted  the  amount  of  tlie  debt, 
from  the  sum  due  to  Givens  upon  the  next  monthly 
estimate. 

§  562.  So  in  Lucas  v.  Payne,  7  California,  92,  A.  D. 
1857,  one  Moulton,  a  debtor  to  the  plaintiffs,  had  conveyed 
to  the  defendant  Payne,  one  of  tlie  firm  of  Payne  and 
Dewey,  real  estate  auctioneers,  certain  real  estate  equal  in 
value  to,  or  greater  than  his  debt  to  the  plaintiffs,  to  be 
sold  by  the  firm  for  and  on  account  of  Moulton  ;  and  on 

(g)  See  §  558. 


566  COLLATEEAL   UNDERTAKINGS.  [Ch.  XY. 

the  same  day  he  gave  the  plaintiffs  an  order  on  the  de- 
fendants for  the  proceeds  of  the  property,  which  they 
accepted ;  the  object  of  making  the  conveyance,  the  order 
and  the  acceptance  being  to  secure  the  plaintiffs'  debt. 
Subsequently  Payne  and  Dewey  reconveyed  a  part  of  the 
property  to  Moulton  without  consideration,  and  sold 
another  portion  to  other  persons  ;  and,  as  it  would  seem, 
held  the  remainder  in  their  hands.  On  a  bill  in  equity 
against  Payne,  Dewey  and  Moulton,  charging  confeder- 
acy, and  praying  a  decree  that  Payne  and  Dewey  should 
perform  and  execute  the  trust  in  favor  of  the  plaintiffs,  a 
decree  was  rendered  in  favor  of  the  plaintiffs,  and  against 
Payne  and  Dewey  "  for  the  amount  of  their  claim  against 
Moulton,"  from  which,  and  from  the  order  of  the  court 
refusing  a  new  trial,  the  defendants  appealed.  And  it 
was  held,  on  the  appeal,  that  the  promise  of  Payne  and 
Dewey  was  not  void  by  the  statute  of  frauds  ;  and  that 
they  could  not  escape  their  trust  by  reconveying  to  Moul- 
ton.    And  so  the  judgment  was  affirmed. 

§  563.  On  the  other  hand,  in  Massachusetts,  the  rule 
seems  to  be  quite  as  conclusively  settled  that  such  a  prom- 
ise is  within  the  statute,  as  it  is  settled  the  other  way  in 
New  York.  The  case  of  Curtis  v.  Brown,  59  Massachu- 
setts (5  Gushing),  488,  which  has  already  been  cited,  (A)  is 
open  perhaps  to  considerable  criticism,  for  other  reasons 
besides  its  repudiation  of  the  New  York  rule ;  but  the  doc- 
trine there  affirmed,  was  reiterated,  as  far  as  this  question 
is  involved,  in  the  very  recent  case  of  Furbish  v,  Goodnow, 
98  Massachusetts,  296,  A.  D.  1867.  The  report  says  that 
upon  the  trial  the  plaintiffs  relied  upon  the  case  stated  in 
their  declaration,  namely,  that  one  "Redding  was  in- 
debted to  them  on  a  promissory  note  which  they  continued 
to  hold ;  and  that  by  an  agreed  arrangement  between 
the  defendant,  Redding  and  the  plaintiffs.  Redding  con- 
veyed certain  real  estate  to  the  defendant,  and  as  part 
of  the  consideration  therefor,  the  defendant  promised  to 

Qi)  See  §  418, 


Art.  III.]         Collateral  Undertakings.  557 

pay  the  plaintiffs  the  amount  of  the  note."  It  being  ad- 
mitted that  the  promise  was  merely  verbal,  the  judge 
ruled  that  the  action  could  not  be  maintained,  and  there 
was  a  verdict  for  the  defendant.  The  Supreme  Court 
overruled  the  exceptions  taken  by  the  plaintiffs.  Gray,  J., 
delivering  the  opinion  of  the  court.  The  general  rule, 
laid  down  by  him,  as  being  the  only  one  whereby  a  prom- 
ise within  the  letter  of  the  statute  can  be  excluded  from  its 
provisions,  is  that  "  if  the  principal  and  immediate  object 
of  the  transaction  is  to  benefit  the  promisor,  not  to  secure 
the  debt  of  another  person,  the  promise  is  considered  not 
as  collateral  to  the  debt  of  another,  but  as  creating  an 
original  debt  from  the  promisor,  which  is  not  within  the 
statute,  although  one  effect  of  its  payment  may  be  to  dis- 
charge the  debt  of  another." 

§564.  "But,"  he  added,  "if  no  consideration  moves 
from  the  creditor  to  the  new  promisor,  and  the  original 
debtor  still  remains  liable  for  the  debt,  the  fact  that  the 
promisee  gives  up  something  to  that  debtor,  or  that  a 
transfer  of  property  is  made  or  other  consideration  moves 
from  that  debtor  to  the  new  promisor,  to  induce  the  latter 
to  make  the  new  promise,  does  not  make  this  promise  the 
less  a  promise  to  answer  for  the  debt  of  another  ;  but  on 
the  contrary,  the  fact  that  the  only  new  consideration 
either  enures  to  the  benefit  of  that  other  person,  or  is  paid 
by  him  to  the  new  promisor,  shows  that  the  object  of  the 
new  promise  is  to  answer  for  his  debt."  This  conclusion 
was  sustained  by  an  elaborate  examination  of  the  previous 
Massachusetts  cases,  among  others  Curtis  v.  Broion.,  the 
ruling  in  which  was  approved  ;  and  the  learned  judge  said 
that  such  is  also  the  construction  in  England,  examining 
in  detail  the  modern  cases.  Emerson  v.  Slater,  22  How- 
ard, 28,  (z)  is  not,  he  contended,  opposed  to  Curtis  v. 
Broion,  "for  in  that  case  the  promise  of  the  defendant 
was  an  original  undertaking  on  a  good  and  valid  consid- 
eration moving  from  the  plaintiff  to  the  defendant."     He 

(z)  A  case  which  will  receive  a  very  careful  examination  in  chapter  xvii. 


568  Collateral  Undertakings.  [Ch.  xv. 

continued  as  follows:  "The  other  cases  cited  for  the 
plaintiff  indeed  show  that  by  the  later  decisions  in  New 
York,  Maine  and  Vermont,  the  application  of  the  statute 
has  been  so  far  relaxed  in  those  states,  as  to  treat  a  trans- 
fer of  property  from  the  original  debtor  to  the  new  prom- 
isor, as  taking  the  promise  of  the  latter  to  the  original 
creditor  out  of  the  statute,"  but  the  authorities  in  Mas- 
sachusetts, being  the  other  way,  should  be  followed  by  this 
court.  "In  this  action,"  he  concluded,  "brought  upon 
an  express  promise  of  the  defendant  to  pay  the  debt  of  a 
third  person  to  the  plaintiff,  no  evidence  being  offered  of 
a  discharge  of  the  original  debtor,  or  of  any  consideration 
whatever  moving  between  the  creditor  and  the  new  prom- 
isor, but  the  only  consideration  being  a  conveyance  of 
real  estate  to  the  latter  from  the  original  debtor ;  the  new 
promise  was,  according  to  the  weight  of  authority,  and  in 
our  opinion,  upon  principle,  a  promise  to  answer  for  the 
debt  of  another  within  the  statute,  and  the  action  cannot 
be  maintained. "(/) 

AETICLE  IV. 

Wiether,  if  the  fund  proves  to  be  insufficient  to  discharge  the  promise,  the  promisor  can  ever  be 
made  liable  for  the  excess  of  the  debt, 

§  565.  Several  of  the  preceding  cases  hold  that  the 
promise  to  pay  the  debt  is  presumptive  evidence  of  the 
sufficiency  of  the  fund  for  that  purpose,  and  such  may  be 
assumed  to  be  the  settled  rule  ;  so  that  the  plaintiff  will 

(/)  This  and  Curtis  v.  Brown  are,  we  believe,  the  only  modern  cases  in 
the  United  States,  which  distinctly  hold  that  a  promise  is  within  the  statute, 
when  it  was  made  in  contemplation  of  a  fund,  adequate  for  its  fulfilment, 
furnished  by  the  debtor  to  the  promisor,  for  the  purpose  of  paying  the  debt. 
Still  it  is  proper  to  say  that  in  Emerick  v.  Sanders,  1  Wisconsin,  77 ;  West- 
heimer  v.  Peacock,  2  Iowa,  528,  and  Johnson  v.  Morris,  21  Georgia,  238, 
(ante,  §§  541,  542,  543),  the  court  may  have  intended  to  hold  that 
the  receipt  of  a  fund  from  the  debtor  makes  no  difference  with  respect 
to  the  application  of  the  statute;  instead  of  those  cases  being,  as  we  have 
considered  them,  instances  where  the  seventh  rule  was  either  overlooked  or 
erroneously  applied.  The  case  of  Curtis  v.  Brown  is  also  mentioned  approv- 
ingly in  Clapp  V.  Lawton,  31  Connecticut,  95. 


Art.  IV.]  Collateral  IJNDERTAKrxGS.  669 

not  be  under  the  necessity  of  making  any  affirmative 
proof  of  its  sufficiency.  But  generally  the  defendant 
may  exonerate  himself,  in  whole  or  in  part,  from  liability, 
by  showing  that  the  fund  was  insufficient.  The  promise 
is  taken  out  of  the  statute,  upon  the  presumption  that  it 
was  to  be  fulfilled  out  of  the  means  of  the  debtor,  and 
not  those  of  the  promisor  ;  and  where  the  contrary  clearly 
appears,  a  recovery  beyond  the  amount  of  the  debtor  s 
means  in  the  hands  of  the  defendant,  would  be  a  plain 
violation  of  the  spirit  of  the  statute,  which  the  plaintiff 
has  already  been  compelled  to  invoke  to  sanction  the 
violation  of  its  letter. 

§  566.  This  is  sufficiently  evident  from  the  cases  already 
cited,  and  the  principles  upon  which  they  proceeded, 
although  the  question  appears  to  have  rarely  presented 
itself  directly.  It  arose,  however,  very  clearly  in  a  case 
decided  by  the  New  York  Superior  Court,  A.  D.  1847, 
PiJce  V.  Irwin^  1  Sandford,  14.  There  the  plaintiff,  as 
part  of  the  proceedings  to  enforce  a  mechanic' s  lien,  under 
a  statute  of  New  York,  sued  in  the  court  below  for 
work  done  by  him  iipon  certain  buildings,  which  were 
being  erected  for  the  defendant  by  a  firm  of  builders,  the 
plaintiff  being  one  of  their  workmen ;  and  it  was  shown 
that  the  defendant  had  requested  the  plaintiff  to  serve 
papers  upon  him  under  the  lien  law,  and  had  promised 
to  pay  him,  if  he  would  procure  an  order  from  the  con- 
tractors, which  he  had  done.  At  the  trial  the  defendant 
offered  to  prove  that  all  the  payments  upon  his  contract 
with  the  builders  had  been  made,  except  the  last,  which 
never  became  due,  because  the  contract  had  not  been 
fulfilled  ;  and  the  court  below  rejected  this  evidence,  and 
rendered  judgment  for  the  plaintiff.  The  judgment  was 
'reversed  upon  certiorari,  the  Superior  Court  holding  that 
the  promise  and  request  to  serve  the  lien  papers,  were  at 
most  an  admission  that  there  was  something  due  upon  the 
contract,  which  the  defendant  had  a  right  to  rebut,  by 
showing  the  truth  of  the  case  to  be  otherwise.  And  that  the 
verbal  promise  could  not  be  sustained  upon  a  considera- 


560  COLLATEEAL  UNDERTAKINGS.  [Ch.  XV. 

tion  moving  to  the  defendant,  because  the  proof  that 
nothing  was  due  would  bring  it  within  the  statute. 

§  567.  And  there  seems  to  be  no  reason  why,  when  the 
fund  consists  of  property  not  yet  converted  into  money, 
and  the  promise  does  not  in  terms  depend  for  its  fulfilment 
upon  the  receipt  of  the  proceeds  by  the  promisee,  the  jury 
should  not  estimate  its  value,  for  the  purpose  of  determining 
the  extent  of  the  liability  of  the  promisor.  But  when  the 
property  transferred  became,  by  the  agreement  between 
the  debtor  and  the  promisor,  the  absolute  property  of  the 
latter,  the  fact  that  it  fell  short  in  value,  or  in  the  proceeds 
actually  realized  therefrom,  of  the  amount  of  the  liability 
assumed  in  consideration  of  its  transfer,  appears  to  be 
unimportant.  For  in  that  case  the  fund  does  not  consist 
of  the  property  or  of  its  proceeds,  but  of  the  portion  of 
the  purchase  price,  which  the  promisor  retained  in  his 
hands  ;  and  if  the  debts  which  he  has  assumed  to  pay  are 
larger  in  amount,  than  the  sum  which  he  is  able  to  realize 
from  the  property,  that  fact  proves  only  that  he  made  a 
bad  bargain,  not  that  he  is  paying  the  debt  of  another 
from  his  own  means. 

§  568.  It  has,  however,  been  held,  in  some  exceptional 
cases,  that  the  promisor  may  be  made  liable  for  more  than 
the  amount  of  the  fund,  without  regard  to .  the  question 
whether  he  became  its  absolute  owner.  Such  an  opinion 
was  expressed  by  the  New  York  Superior  Court  in  decid- 
ing Lippincott  V.  AsJifield,  4  Sandford,  611,  A.  D.  1851. 
There  the  complaint  alleged  that  the  defendant  represented 
to  the  plaintiffs  that  he  had  under  his  control  certain  prop- 
erty of  a  debtor  to  the  plaintiffs,  which  was  worth  more 
than  the  plaintiffs'  demand  ;  and  in  consideration  that  the 
plaintiffs  would  forbear  against  the  debtor  for  twelve 
months,  the  defendant  verbally  promised  to  sell  the  prop- 
erty, and  pay  to  the  plaintiffs  the  proceeds  within  the 
twelve  months  ;  and  that  the  property  should  sell  for 
enough  to  pay  the  demand.  It  was  further  alleged  that 
the  plaintiff  forbore  accordingly,  but  the  defendant  had 


Art  IV.]  Collateral  Undertakings.  56J 

not  performed  his  agreement.  Upon  demurrer  to  the 
complaint,  the  court  gave  judgment  for  the  plaintiff,  and 
this  was  affirmed  upon  apjK^al.  Paine,  J.,  in  delivering 
the  opinion  of  the  court,  said,  that  there  were  two  promises, 
neither  of  which  was  to  pay  the  debt  of  another ;  that  the 
promise  by  a  third  person  to  apply  the  debtor' s  own  prop- 
erty to  pay  his  debt,  was  not  a  prohiise  to  pay  it  himself; 
and  the  guaranty  added  to  tliis  promise,  tliat  the  property 
shall  sell  for  enough  to  pay  it,  was  not  a  promise  to  pay  it. 
"Neither  are  both  promises,  taken  together,  a  promise  to 
pay  the  debt,  although  their  effect  may  be  to  render  the 
promisor  liable  for  so  much  of  it  as  the  property  should 
be  insufficient  to  pay.  We  do  not  think  the  statute  is  to 
be  extended  by  a  forced  construction,  to  embrace  a 
case  which  is  clearly  not  within  its  letter  or  meaning.  The 
statute,  no  doubt,  means  the  ordinary  promise  to  pay 
another' s  debt ;  that  is,  a  promise  which  simply  binds  the 
promisor  himself  to  pay  the  debt  with  his  own  means." 
The  learned  judge  added,  but  upon  the  question  of  the 
consideration  rather  than  the  aj^plication  of  the  statute, 
that  the  forbearance  was  not  only  a  detriment  to  the 
plaintiffs  but  also  a  benefit  to  the  defendant.  He  had  the 
debtor' s  property  in  his  hands,  and  the  presumption  was 
that  the  agreement  was  made  with  the  debtor's  assent. 
If  the  promise  had  been  made  directly  to  the  debtor,  there 
could  have  been  no  question  that  the  consideration  was 
sufficient,  and  the  promise  was  binding  ;  and  the  plaintiff''^ 
could  have  maintained  an  action  upon  it.  There  was  no 
reason  therefore  why  he  should  not  sue  upon  it,  when 
made  directly  to  himself,  (a) 

§  569.  A  ruling  to  the  same  effect  was  made  upon  a 
different  state  of  facts  in  McK^nzie  v.  Jaclison,  4  Alabama, 
230,  A.  D.  1842.  There  the  defendant  had  been  in  part- 
nership with  one  Gerald;  and  Gerald  had  sold  out  his 
interest  in  the  partnership  stock  and  credits  to  the  defend- 
ant and  one  Adams ;  they  covenanting,  as  part   of  the 

(a)  See  Ardern  v.  Rowney,  5  Espinasse,  254,  ante,  §  524. 
71 


662  Collateral  Undeetakings.  [Ch.  xv. 

consideration,  to  pay  certain  firm  debts,  and  certain 
individual  debts  of  Gerald,  among  them  a  debt  due  to 
the  plaintiff.  The  defendant  subsequently  promised  the 
plaintiff  to  pay  him  this  debt ;  and  he  repeated  the  prom- 
ise from  time  to  time  during  nearly  four  years.  The 
action  was  founded  upon  that  promise,  the  arrangement 
with  Gerald  being  set  forth  in  the  declaration,  merely  by 
way  of  inducement  thereto.  There  was  also  evidence  of 
forbearance  as  the  consideration  of  the  promise,  and  that 
the  plaintiff  and  his  relations,  at  the  request  of  the  defend- 
ant, had  dealt  at  the  latter' s  store  on  account  of  the  debt, 
whereby  part  of  it  had  been  paid.  It  also  appeared  that 
the  effects  received  by  the  defendant  and  Adams  largely 
exceeded  in  value,  the  amount  which  they  were  bound  to 
pay,  or  at  least  that  such  was  the  estimate  ;  but  the  evidence 
also  showed,  as  was  assumed  upon  the  trial  and  the  argu- 
ment, that  there  was  a  deficency  in  the  amount,  caused  by 
offsets  against  the  demands  transferred  by  Gerald ;  but 
the  defendant  made  no  complaint  on  that  account,  until 
about  six  weeks  before  the  trial.  On  these  facts  the 
defence  of  the  statute  of  frauds  was  interposed  and  over- 
ruled, and  the  plaintiff  had  judgment ;  whereupon  the 
defendant  brought  error  to  the  Supreme  Court,  where  the 
judgment  was  affirmed.  After  discussing  the  question 
whether  the  action  could  be  sustained,  upon  which  point 
it  was  held  that  the  promise  to  the  plaintiff  constituted 
the  cause  of  action,  and  that  the  consideration  of  it  was 
the  fund  received  from  Gerald ;  the  court  proceeded  to 
consider  whether  the  alleged  deficiency  in  the  fund  con 
stituted  any  defence  to  the  action.  Upon  that  point  the 
opinion  said:  "However  valid  such  an  objection  might 
be,  if  seasonably  urged,  it  cannot  prevail  under  the 
circumstances  of  this  case.  The  repeated  promises  of  the 
defendant,  made  with  the  opportunity  of  full  knowledge 
of  the  facts,  are  obligatory  upon  him.  It  might,  and  in 
all  probability  would  operate  most  injuriously  upon  the 
plaintiff,  if  after  having  been  lulled  into  a  false  security 
for  so  many  years,  by  the  repeated  promises  of  the  defend- 
ant, and  the  delays  in  the  collection  of  the  debt  conse- 


Art.  IV.]         Collateral  Undertakings.  563 

quent  thereon,  he  should  now  be  permitted  to  allege  a 
failure  of  the  fund  from  which  the  payment  was  to  be 
made.     The  objection  comes  too  late." 

§  570.  It  can  hardly  be  said  that  either  of  these  cases  is 
a  conclusive  precedent  for  the  rule  which  it  assumes  to  lay 
down,  because  either  decision  can  be  very  clearly  sup- 
ported, upon  a  different  ground  from  that  upon  which  it 
was  put  by  the  court.  In  Lippincott  v.  AsJifield,  the 
plaintiff  stated  enough  in  his  complaint  to  have  sustained 
it  upon  the  demurrer,  without  regard  to  the  question  of 
the  amount  of  damages.  Indeed  upon  proof  of  the  repre- 
sentation and  promise  to  pay  the  debt,  without  the  guar- 
anty of  the  sufficiency  of  the  fund,  he  would  have  been 
prima  facie  entitled  at  the  trial  to  a  verdict  for  the  full 
amount  of  his  debt,  according  to  the  weight  of  authority 
of  the  cases  cited  in  the  preceding  portions  of  this  chapter. 
And  in  McKenzie  v.  Jackson,  the  defendant  was  a  pur- 
chaser from  the  debtor,  upon  a  promise  to  pay  the  plaint- 
iff a  part  of  the  purchase  price.  So  the  amount  actually 
realized  by  him  was  of  no  importance,  within  the  principle 
stated  in  the  567th  section.  The  question  whether  circum- 
stances can  ever  occur  where  the  promisor  will  be  held  to 
liability  beyond  the  amount  of  the  fund,  may  therefore  be 
considered  as  yet  open  ;  and  whatever  may  be  the  rule  in 
an  exceptional  case,  it  is  clear  that  ordinarily  the  fund 
limits  the  liability. 


CHAPTER   SIXTEENTH. 

CASES  WHEKE  A  PEOMISE  TO  PAY  A  THIRD  PERSON'S  DEBT 
IS  NOT  WITHIN  THE  STATUTE,  BECAUSE  THE  PROPERTY 
OF  THE  PROMISOR  WAS  THEN  SUBJECT  TO  A  LIEN  OR 
CHARGE   FOR  THE   PAYMENT   OF  THE   SAME  DEBT. 


§  571.  The  classification  whicli  we  have  pursued  thus 
far,  now  leads  us  to  the  examination  of  the  third  class  of 
this  general  division,  consisting  of  cases  where  the  debt 
assumed  by  the  promise  was  already  a  charge  upon  the 
property  of  the  promisor,  (a)  As  we  have  already  inti- 
mated several  times,  this  subject  necessarily  involves  the 
consideration  of  the  question,  whether  the  rule  which 
properly  governs  those  cases,  should  in  terms  be  restricted 
to  them,  or  whether  it  should  take  a  much  wider  range. 
The  proposition  has  been  maintained,  upon  authority  en- 
titled to  the  greatest  respect,  that  the  reason  why  such 
cases  are  not  within  the  statute,  is  that  the  leading  object 
of  the  promisor  was  to  subserve  some  purpose  of  his  own, 
distinct  from  the  discharge  of  the  original  debtor.  Hence 
it  has  been  argued,  that  every  case  is  without  the  statute, 
where  such  was  the  promisor's  leading  object,  and  the 
consideration  of  the  promise  moved  to  hini,  and  tended  to 
promote  that  object.  If  these  conclusions  are  correct,  it 
follows  that  these  cases  constitute  merely  a  group  or  sub- 
division of  a  more  comprehensive  class,  governed  by  a 
rule  which  makes  the  existence  of  this  common  feature, 
the  test  of  their  exclusion  from  the  provisions  of  the 
statute. 

§  572.  The  question  is  of  much  practical  importance 
and  can  be  intelligently  discussed  only  in  the  light  of  those 
cases,  which  possess  the  supposed  common  feature  ;  but 

(ri)  Ante,  ^71. 


Collateral  Undertakings.  6G5 

lack  the  one  which  we  have  adopted  as  the  distinguisliing 
characteristic  of  this  class.  Such  a  discussion  will  neces- 
sarily extend  itself  to  a  considerable  length  ;  and  clear- 
ness and  convenience  will  be  promoted  by  deferring  to  a 
subsequent  chapter  the  process  of  reasoning,  and  the 
critical  examination  of  adjudications,  by  which  the  rejec- 
tion of  the  more  comprehensive  rule  may  be  justified. 
And  as  it  is  conceded,  on  both  sides  of  the  question,  that 
the  cases  of  this  description  form  a  distinct  group,  if  not 
a  class ;  let  us  commence  the  investigation,  by  endeavor- 
ing to  define  its  true  limits,  and  to  ascertain  the  principles 
upon  which  the  cases  within  it  are  taken  out  of  the 
statute,  and  the  rule  which  governs  them.  But  in  order 
to  avoid  needless  repetition,  the  foundation  of  the  sub- 
sequent discussion  will  be  laid,  by  appropriate  observa- 
tions upon  the  cases,  as  they  may  present  themselves. 
And,  as  we  have  already  remarked,  the  principle  embodied 
in  the  foregoing  seventh  rule  was  derived  from  the  earlier 
cases  of  the  same  series  ;  so  that  our  comments  upon  them 
will  be  framed,  and  the  subsequent  inquiry  into  the  true 
principles  which  they  establish,  will  be  prosecuted  with 
reference  to  that  question  also. 

§  573.  In  most  of  the  modern  cases,  especially  in  the 
United  States,  it  seems  to  be  assumed,  rather  than  ex- 
pressly decided,  that  the  promisee,  in  consideration  of 
the  promise,  must  actually  surrender  the  lien  or  charge 
upon  the  promisor's  property.  Perhaps  the  true  prin- 
ciple will  be  satisfied,  if  in  fkct  the  fulfilment  of  the  prom- 
ise will  discharge  the  lien.  But  in  practice  it  has  almost 
invariably  happened,  that  when  a  verbal  promise  to  pay 
the  debt  has  been  sustained,  it  has  been  founded  upon  a 
cotemporaneous  surrender  of  the  lien  ;  and  as  most  of 
the  authorities  lay  much  stress  upon  that  circumstance,  it 
has  been  adopted  as  a  basis  in  framing  the  governing  rule, 
which  is  accordingly  stated  in  these  terms : 

RULE  EIGHTH. 
A  promise  to  pay  the  debt  of  another  is  Bot  within  tho  statute,  if  its  consideration  was  the 
abandonment  to  the  promisor  of  a  security  for  the  payment  of  the  debt,  consisting  of  a  lien 
upon,  or  interest  in  property,  to  which  the  promisor  then  had  a  subordinate  title. 


566  Collateral  Undertakings.         [Ch.  xvi. 

§  574.  There  is  one  essential  condition  of  this  rule, 
respecting  which  the  English  and  American  cases  now 
agree ;  although  for  a  long  time  there  was  much  confu- 
sion upon  the  subject.  It  is  that  the  lien  must  have 
attached  to  the  property  of  the  promisor  ;  for  if  it  was  upon 
the  property  of  the  debtor,  or  of  a  stranger,  the  case  will  be 
within  the  statute.  We  think  that  upon  a  fair  construction 
of  the  English  authorities,  and  perhaps  also  of  the  best 
American  authorities,  the  rule,  as  thus  explained,  rests 
upon  the  idea  that  the  existing  liability  of  the  promisor' s 
property  to  pay  the  debt,  is  equivalent,  for  this  purpose, 
to  his  existing  personal  liability  therefor  ;  and  conse- 
quently that  it  is  immaterial  whether  the  lien  be  surren- 
dered, if  there  was  some  other  consideration,  sufficient  to 
sustain  the  promise  at  common  law.  But  however  this 
may  be,  it  would  seem  that  the  interest  of  the  promisor 
may  be  acquired  simultaneously  with  the  making  of  the 
promise,  and  that  it  need  not  be  an  absolute  ownership. 
The  rule  is  satisfied,  according  to  several  cases,  if  the 
promisor  controlled  the  property,  as  the  representative  of 
the  true  owner.  (5) 


AETICLE  I. 

English  decisions  npon  the  suliject  matter  of  this  role,  and  also  involving  the  q^nestions  to  be 
discussed  hereafter  in  this  connection. 

§  575.  The  series  of  English  decisions,  to  the  examina- 
tion of  which  this  article  is  devoted,  will  be  continued  to 
the  present  time  ;  so  as  to  show  the  principle  which  has 
been  established  in  that  country  by  the  modern  cases,  as 
properly  to  be  deduced  from  those  of  earlier  dates.  But 
long  before  the  elBTect  of  the  latter  had  thus  been  settled 
by  the  English  courts,  they  had  been  otherwise  construed 
by  American  adjudications,  which  had  become  local  prece- 


(6)  Houlditch  v.  Milne,  3  Espinasse,  86;  Castling  v.  Aubert,  2  East,  325; 
Edwards  v.  Kelly,  6  Maule  and  Selwyn,  204;  Bampton  v.  Paulin,  12  Moore, 
497 ;  Walker  v.  Taylor,  6  Carrington  and  Payne.  752  j  cited  in  the  follow 
ing  article, 


Art.  I.]  Collateral  Undertakings.  667 

dents  ;  whence  ensued,  for  a  long  time,  a  wide  divergence 
of  opinion  between  the  courts  of  the  two  countries.  As 
some  of  the  perplexity  to  which  these  early  cases  have 
given  rise,  was  caused  by  insufficient  and  sometimes 
incorrect  reporting,  the  reports  have  been  corrected  in  the 
following  summaries,  wherever  errors  could  be  detected, 
either  by  comparing  two  or  more  reports  of  the  same  case, 
or  from  intrinsic  evidence  furnished  by  a  careful  examina- 
tion of  the  only  report  extant. 

§  676.  The  earliest  of  these  decisions  is  the  equity  case 
of  Tomlinson  v.  Gill,  Ambler,  330,  A.  D.  1756,  previously 
cited  in  considering  the  question  of  the  liability  of  exec- 
utors and  administrators,  (a)  There  the  defendant  had 
promised  the  widow  of  an  intestate,  that  if  she  would 
permit  him  to  be  joined  with  her  in  the  letters  of  adminis- 
tration, he  would  make  good  any  deficiency  of  assets  to 
discharge  the  debts  ;  and  joint  administration  was  accord- 
ingly taken  out.  On  a  bill  in  equity,  tiled  by  creditors 
of  the  intestate  for  satisfaction  of  their  debts,  it  was 
objected  that  the  promise  was  within  this  branch  of  the 
fourth  section  of  the  statute,  as  well  as  that  relating  to 
special  promises  by  executors  and  administrators.  But 
Lord  Hardwicke  upon  that  point  said :  "It  is  not  within 
the  second  branch  of  that  clause  ;  the  modern  determina- 
tions have  made  a  distinction  between  a  promise  to  pay  the 
original  debt,  and  on  the  foot  of  the  original  contract,  and 
where  it  is  on  a  new  consideration."  Then,  after  saying 
that  the  distinction  taken  in  Buckmyr  v.  Darnell  was 
"avery  slight  and  cobweb  distinction,"  he  added  :  "Here 
is  quite  a  new  distinct  consideration.  Read  v.  Nash  is 
strong  to  the  purpose."  And  the  complainants  had  a 
decree.  This  is  believed  to  be  the  fijst  foreshadowing  of 
the  doctrine,  w^hich  long  obtained  general  recognition  in 
the  United  States,  that  any  new  consideration,  distinct 
from  the  original  debt,  and  moving  to  the  promisor,  would 
suffice  to  take  the  case  out  of  this  clause  of  the  statute. 

(a)  See  §§  18  to  20,  and  note,  where  the  case  is  fully  commented  upon. 


668  COLLATEEAL   UNDERTAKINGS.  [Ch.  XVI. 

§  577.  The  next,  and  by  far  the  most  famous  of  the 
serieSj  was  Williams  v.  Leper,  3  Burrow,  1886,  decided  in 
the  King's  Bench  A.  D.  1766.(6)  There  one  Taylor,  a 
tenant  of  the  plaintiff,  being  in  arrear  for  rent  to  the 
amount  of  45?.,  and  insolvent,  conveyed  all  his  effects,- for 
the  benefit  of  his  creditors,  to  the  defendant,  who  adver- 
tised them  for  sale.(e)  On  the  morning  advertised  for  the 
sale,  "Williams,  the  landlord,  came  to  distrain  the  goods 
in  the  house.  Leper,  having  notice  of  the  plaintiff's 
intention  to  distrain  them,  promised  to  pay  the  said 
arrear  of  rent  if  he  would  desist  from  distraining  ;  and  he 
did  thereupon  desist"  At  the  trial  the  plaintiff  had  a 
verdict  for  45?.,  subject  to  the  opinion  of  the  court  on  a 
case,  whether  the  promise  was  within  the  statute  of  frauds. 
The  plaintiff' s  counsel  contended  that  the  statute  was  not 
intended  to  apply  to  a  "direct  undertaking,"  founded 
upon  a  "new  consideration  moving  from  the  party 
making  the  promise,  to  the  party  to  whom  it  was  made" 
(sic),  as  he  said  was  the  case  here  ;  the  goods  being  liable 
to  the  distress,  the  plaintiff  having  lost  his  interest  in  them 
in  consequence  of  reliance  on  the  promise  ;  and  the  defend- 
ant having  undertaken  directly  for  himself  and  not  for 
another.  The  defendant's  counsel,  on  the  other  hand, 
argued  that  it  was  directly  within  the  words  of  the  statute, 
the  promise  being  to  pay  absolutely,  and  not  out  of  the 
goods  sold  ;  that  the  original  debtor  remained  liable  ;  and 


(b)  S.  C,  more  briefly,  and  erroneously  stated  to  have  been  iathe  Com- 
mon Pleas,  2  Wilson,  308.     Both  reports, bear  evident  marks  of  carelessness. 

(c)  The  report  in  3  Burrow,  which  is  generally  followed,  and  from  which 
this  abstract  is  mostly  taken,  says  that  the  defendant  was  merely  a  broker 
employed  to  sell  the  goods  by  another  person,  who  was  the  trustee.  This 
is,  we  think,  an  error.  In  the  report  of  the  case  in  2  Wilson,  308,  it  is  said 
that  Taylor  "  made  a  bill  of  sale  to  the  defendant  Leper  of  all  his  goods  in 
the  said  messuage,  in  trust  to  be  sold  for  the  use  of  his  creditors."  And  in 
the  course  of  the  argument,  as  given  in  Burrow,  the  plaintiff's  counsel  at 
one  time  spoke  of  the  assigned  property  as  being  ''  the  goods  of  Leper  "  and 
at  another  time  said:  "The  property  of  these  goods  was  in  Leper  as  trustee 
for  the  creditors,  at  the  time  when  he  made  this  promise,"  And  gee  Lord 
Mansfield's  remarks  as  quoted  in  the  text. 


Art.  I.]  Collateral  Undertakings.  669 

therefore  the  promise  was  collateral.  He  added:  "The 
plaintiff  cannot  recover  upon  this  declaration  ;  it  is  upon 
a  promise  '  to  pay  tlie  debt  to  which  Taylor  was  before 
liable/  If  indeed  the  declaration  had  averred  that  Leper 
promised  to  pay  it  out  of  the  produce  of  the  goods  when 
sold ;  and  that  in  consideration  of  that  promise  he  had 
desisted  from  distraining,  that  had  been  a  different  case." 

§  678.  The  court  Unanimously  thought  that  the  promise 
was  not  within  the  statute,  and  directed  a  judgment  for 
the  plaintiff,  each  of  the  judges  pronouncing  an  opinion. 
Lord  Mansfield,  C.  J.,  said  that  the  case  had  nothing  to 
do  with  the  statute.  "The  res  gesta  would  entitle  the 
plaintiff  to  his  action  against  the  defendant.  The  land- 
lord had  a  legal  pledge  ;  he  enters  to  distrain  ;  he  has  the 
pledge  in  his'  custody.  The  defendant  agrees,  'that  the 
goods  shall  be  sold  and  the  plaintiff  paid  in  the  first 
place.'  The  goods  are  the  fund ;  the  question  was  not 
between  Taylor  and  the  plaintiff.  The  plaintiff  had  a  lien 
upon  the  goods.  Leper  was  a  trustee  for  all  the  creditors, 
and  was  obliged  to  pay  the  landlord,  who  had  the  prior 
lien ;  this  has  nothing  to  do  with  the  statute  of  frauds." 
Wilmot,  J.,  said:  "The  plaintiff  is  in  possession  of  the 
goods,  having  entered  with  intent  to  distrain  them.  Leper 
was  the  agent  for  the  creditors.  He  makes  this  promise  in 
order  to  discharge  the  goods  of  this  distress.  I  consider 
this  distress  as  being  actually  made.  Leper  says  'if 
you  will  quit  the  goods  and  disencumber  tlie  fund  I  will 
pay  you.'  Leper  became  the  bailiff  of  the  landlord,  and 
when  he  had  sold  the  goods,  the  money  was  the  landlord"'s 
(as  far  as  45^.)  in  his  own  bailiff's  hands ;  therefore  an 
action  would  have  lain  against  Leper  for  money  had  and 
received  to  the  plaintiff's  use."  Yates,  J.,  is  said  hi  the 
3d  of  Burrow  to  hav(^  put  his  opinion  on  the  ground  that  it 
was  ' '  an  original  consideration  to  the  defendant. ' '  Aston, 
J.,  said :  "  If  this  was  a  promise  to  pay  the  debt  of  Taylor, 
I  should  think  it  within  the  statute."  "But  1  look  ujion 
the  goods  here  to  be  the  debtor,  and  I  think  that  Leper  was 
aot  bound  to  pay  the  landlord  more  than  the  goods  sold 
73 


570  COLLATEKAL   UnDEKTAKINGS.  [Ch.  XVI. 

for,  in  case  they  liad  not  sold  for  451.     The  goods  were  a 
fund  between  both ;  and  on  that  foot  I  concur." (^) 

§  579.  In  Houlditch  v.  Milne.,  3  Espinasse,  86,  A.  D. 
1800,  the  action  was  in  assumpsit  for  the  repair  of  car- 
riages ;  and  it  appeared  in  evidence  that  the  carriages  be- 
longed to  one  Copey  ;  that  the  defendant  had  sent  them 
to  the  plaintiffs  to  be  repaired,  and  had  given  orders 
respecting  them  ;  that  the  bill  was  made  out  in  the  name 
of  Copey ;  and  that  when  the  carriages  were  repaired,  the 
defendant  sent  an  order  to  pack  them  up  and  send  them  on 
board  ship.  On  the  plaintiffs'  inquiring  who  was  to  pay 
for  them  the  defendant  answered,  "he  had  sent  them  and 
he  would  pay  for  them  ; ' '  the  carriages  were  accordingly 
packed  up  and  sent  on  board  ship,  (but  it  does  not 
appear  to  whom  they  were  consigned  or  delivered) ;  and 
the  bill  was  sent  to  the  defendant,  who  was  afterwards 
called  upon  twice  to  pay  it.  On  the  first  occasion  he  com- 
plained of  its  amount,  but  said  that  "he  would  settle  it ;" 

(d)  In  the  2d  of  Wilson,  Yates,  J.,  is  reported  to  have  said :  "  The  defend- 
ant's promise  is  an  admission  that  the  goods  were  sufficient  to  satisfy  the 
plaintiff's  demand,  and  it  was  a  new  contract  upon  a  good  consideration  ; 
the  defendant  had  an  interest,  and  the  plaintiff  gave  up  his  right  to  distrain.' 
It  is  also  said  there,  that  the  court  held  that  if  the  defendant  liad  sold  the 
goods  and  received  the  njoney,  an  action  for  money  had  and  received  would 
have  lain  ;  from  which,  as  well  as  from  the  argument  of  the  counsel  as  reported 
in  the  3d  of  Burrow,  it  is  quite  evident  that  the  declaration  did  not  contain 
the  common  counts,  and  that  it  did  not  appear  that  the  money  had  been 
received  upon  the  sale  of  the  goods.  Were  not  the  remarks  of  Aston,  J., 
quoted  in  the  text,  as  well  as  the  above  mentioned  remark  of  Yates,  J., 
called  out  in  answer  to  the  suggestion  of  the  defendant's  counsel  that  the  prom- 
ise would  be  good  if  it  was  to  be  fulfilled  out  of  the  fund?  Messrs.  Patteson 
and  Williams,  in  their  note  to  Forth  v.  Stanton,  1  Williams's  Saunders,  211,  say 
that  the  remark  that  the  goods  were  the  debtor  means  that  the  promise  was 
not  to  pay  another's  debt,  but  a  debt  for  which  the  defendant's  goods  were 
liable,  and  they  add :  "  It  is  submitted  that  this  is  the  true  ground  of  the 
decision,  and  that  if  the  defendant  had  not  been  the  owner  of  the  goods,  the 
promise  must  have  been  in  writing,"  and  this  is  now  regarded  by  the  English 
courts  as  containing  the  true  explanation  of  the  case.  See  Fitzgerald  v. 
Dressier,  7  Common  Bench,  N.  S.,  374  (§  590,  post),  and  the  citations  from 
the  text  books  in  the  note  to  §  606. 


Art.  I.]  Collateral  Undertakings.  571 

and  on  the  second  occasion  he  said  that  it  was  most  exor- 
bitant, and  a  fit  subject  to  refer  ;  "  he  however  said  he  had 
the  money  to  pay  it,  but  did  not  say  whether  his  own  or 
Mr.  Copey's."  Upon  this,  Best,  Serjeant,  for  the  de- 
fendant, contended  that  there  being  no  proof  of  the  defend- 
ant' s  having  money  of  Mr.  Copey'  s  in  his  hands,  to  apply  to 
the  count  in  the  declaration  for  money  had  and  received, 
the  plaintiffs  must  be  nonsuited,  as  Copey  was  liable  to 
them,  the  bill  having  been  made  out  to  Copey,  and  con- 
taining charges  for  work  done  by  Copey's  own  order. 
But  Lord  Eldon  declined  to  nonsuit,  thinking  that  the  prin- 
ciple in  Williams  v.  Leper,  where  the  defendant  was  held 
to  be  liable,  "though  it  was  clearly  the  debt  of  another," 
applied  to  this  case,  and  adding  :  "The  plaintiffs  had  to 
a  certain  extent  a  lien  upon  the  carriages,  which  they 
parted  with  on  the  defendant' s  promise  to  pay  ;  that,  he 
thought,  took  the  case  out  of  the  statute,  and  made  the 
defendant  liable  for  the  amount  of  the  bill."  So  the 
plaintiffs  had  a  verdict,  (e) 

§  680.  The  next  case  of  the  series  was  Castling  v.  Aubert, 
2  East,  325,  decided  in  1802.  This  was  an  action  to  re- 
cover damages  for  the  breach  of  an  agreement,  and  there 
was  also  a  count  for  money  had  and  received.  At  the 
trial  the  plaintiff  had  a  verdict,  subject  to  the  opinion  of 
the  court  upon  a  case,  the  contents  of  which  may  be  thus 
briefly  stated.  The  plaintiff,  a  broker,  had  in  his  hands 
certain  policies  of  insurance  belonging  to  one  Grayson, 
upon  which  losses  had  occurred ;  and  the  plaintiff  had 
a  lien  upon  the  policies,  to  indemnify  him  against  his 

(e)  In  the  note  to  Forth  v.  Stanton,  1  Williams's  Saunders,  211,  this  case 
is  explained,  on  the  ground  that  the  circumstances  showed  that  the  entire 
credit  was  given  to  the  defendant,  and  that  Copey  was  not  liable.  But  some 
of  the  circumstances  repel  such  an  idea.  And  see  note  to  §  586,  post.  Accord- 
ing to  the  American  ruling,  the  defendant's  statement  would  be  regarded  as  an 
admission  that  he  had  been  put  in  funds  by  Copey  to  pay  the  debt,  and  he 
would  be  holden  on  that  ground.  But  independently  of  that  principle,  the 
case  may  be  supported  on  the  ground  tha<  the  defendant  controlled  the 
possession  of  the  goods. 


572  Collateral  Undertakings.         [Ch.  xvi. 

acceptances  of  accommodation  bills,  drawn  on  liim  by 
Grayson.  The  defendant,  another  broker,  to  whom  Gray- 
son had  transferred  his  insurance  business,  wished  to  pro- 
cure the  policies,  in  order  to  collect  the  moneys  due  thereon 
for  his  principal ;  whereupon  the  plaintiff,  the  defendant 
and  Grayson  met,  and  the  defendant,  in  consideration  that 
the  plaintiff  would  surrender  them  to  him,  verbally  prom- 
ised to  the  plaintiff  to  provide  for  the  acceptances,  and  did 
so  in  part ;  but  in  consequence  of  his  failure  fully  to  provide 
for  them,  the  plaintiff  sustained  damages  to  the  amount 
found  by  the  jury.  It  also  appeared  that  the  defendant 
had  received  from  the  underwriters  moneys  much  beyond 
the  sum  in  dispute.  It  was  held  by  the  whole  court  that 
the  promise  was  not  within  the  statute. 

§  581.  Lord  EUenborough,  C.  J.,  said  that  in  this  case 
the  plaintiff  would  be  entitled  to  recover  upon  the  count 
for  money  had  and  received,  as  it  appeared  that  the  de- 
fendant had  collected  upon  the  policies  more  money  than 
the  amount  of  the  plaintiff's  lien.  And  upon  the  question 
whether  the  promise  was  within  the  statute  he  added,  that 
the  defendant  ' '  procured  from  the  plaintiff  the  securities 
upon  the  faith  of  this  engagement,  in  entering  into  which 
he  had  not  the  discharge  of  Grayson  principally  in  his 
contemplation,  but  the  discharge  of  himself.  That  was  his 
moving  consideration,  though  the  discharge  of  Grayson 
would  eventually  follow.  It  is  rather  therefore  a  pur- 
chase of  the  securities  which  the  plaintiff  held  in  his 
hands."  "In  the  case  of  a  bill  of  exchange  for  which 
several  persons  are  liable,  if  it  be  agreed  to  be  taken  up 
and  paid  by  one,  eventually  others  may  be  discharged ; 
and  the  same  objection  might  be  made  there ;  but  the 
moving  consideration  is  the  discharge  of  the  party  him- 
self and  not  of  the  rest,  though  that  also  ensues."  He 
concluded  that  he  agreed  with  Williams  v.  Leper,  to  its 
full  extent,  namely,  that  the  case  was  not  within  the  stat- 
ute of  frauds,  and  with  Mr.  Justice  Aston,  "that  the  evi- 
dence sustains  the  count  for  money  had  and  received." 
Grose,  J.,  agreed  on  both  points;  and  Lawrence,  J.,  said 


Art.  I.]  Collateral  Undektakings.  57:J 

that  it  was  a  purchase  of  the  plaintiff's  interest,  not  a 
bare  promise  to  pay  another' s  debt,  but  a  promise  to  jiay 
what  the  ])hiiiitiff  woukl  be  liable  to  pay,  if  the  plaintiff 
would  furnish  him  the  means  of  so  doing.  Le  Blanc,  J., 
concurred,  on  the  ground  that  the  fund  was  adequate  to 
the  discharge  of  the  incumbrances,  and  the  defendant 
took  it  with  the  incumbrances  upon  it.  !So  the  plaintifi" 
had  judgment  upon  his  verdict. (/) 

§  582.  The  next  case  in  the  series,  Barrell  v.  Trussell^ 
4  Taunton,  117,  A.  D.  1811,  in  the  Common  Pleas,  al- 
though frequently  cited  with  the  rest,  is  believed  to  have 
no  application  to  any  of  the  principles  to  be  examined  in 
this  connection ;  as  the  declaration  and  the  proofs  did  not 
show  that  the  plaintiff  had  any  thing  but  an  absolute  title 
to  the  goods.  Mansfield,  C.  J.,  said  that  it  was  unintelli- 
gible, and  that  "there  is  nothing  to  show  it  is  an  under- 

(/)  In  3  Parsons  on  Contracts,  fifth  edition,  page  27,  note,  Lord  Ellen- 
borough's  remark,  relative  to  the  principal  object  of  the  contract,  is  stated  to 
have  been  that  the  defendant  had  his  own  discharge  in  view,  which,  it  is 
said,  cannot  be  sustained  upon  the  facts  as  reported,  because  he  was  acting 
exclusively  for  Grayson  ;  and  it  is  therefore  intimated  that  the  defendant 
must  himself  have  been  liable  upon  the  bills.  Mr.  Roberts,  in  his  Treatise 
on  the  Statute,  page  229,  also  comments  upon  the  case  as  if  Lord  Ellen- 
borough  referred  to  the  defendant,  although  he  does  not  attempt  to  explain 
the  apparent  inconsistency.  But  although  the  expression  is  certainly  very 
awkward,  we  understand  it  to  mean  that  in  making  the  contract,  the  plaint- 
iff and  the  defendant  had  not  in  view  the  discharge  of  Grayson  from  lia- 
bility, absolute  or  contingent,  to  the  plaintiff;  but  rather  the  discharge  of  the 
plaintiff  from  liability  to  the  holder  of  the  acceptances.  This  accords  with 
the  remark,  immediately  following,  that  it  was  a  purchase.  The  illustration 
drawn  from  the  parties  to  a  bill  of  exchange  is  equally  obscure,  not  to  say 
unfortunate.  It  was  remarked  in  another  place,  that  the  promise  in  Ca-^tling 
V.  Aubert  was  made  to  the  debtor,  and  might  have  been  taken  out  of  the 
statute  on  that  ground,  had  it  been  thought  of;  but  regarding  the  promise  as 
an  undertaking  for  Grayson's  debt,  it  comes  fairly  within  our  eighth  rule. 
But  it  is  now  settled  in  England  that  this  case  was  decided  upon  the  ground 
that  the  transaction  was  a  purehase.  See  note  to  Forth  v.  Stanton,  1  Williams's 
Saunders,  211,  and  extracts  from  English  text  books  in  the  note  to  section 
606,  post;  also  Fitzgerald  v.-Dressler,  7  Common  Bench,  New  Series,  374, 
DOSt,  §  590.     This  view  is  commented  upon  in  the  note  to  §  647. 


574  Collateral  Undertakings.         [Ch.  xvi. 

taking  to  pay  the  debt  of  another."  A  remark  of  Heath, 
J.,  during  the  argument,  has  been  erroneously  construed 
as  intimating  that  the  mere  surrender  of  a  lien  would  take 
a  promise  out  of  the  statute  ;  what  he  said  was  that  such 
a  surrender  was  2. good  consideration^  which  was  followed 
by  a  remark  from  "the  court,"  to  the  effect  that  a  good 
consideration  is  required,  whether  the  promise  is  in  writ- 
ing or  not. 

§  583.  But  the  question  of  the  application  of  the  statute 
was  directly  presented  in  Edwards  v.  Kelly,  6  Maule 
and  Selwyn,  204,  decided  in  the  King' s  Bench,  A.  D.  1817. 
There  the  plaintiff,  having  distrained,  for  rent  in  arrear, 
goods  which  the  tenant  was  about  to  sell,  and  which  were  of 
greater  value  than  the  amount  due  for  rent,  agreed  with 
the  defendants  to  deliver  up  the  goods,  and  to  permit  them 
to  be  sold  by  one  of  the  defendants  for  the  tenant,  upon 
the  defendants'  joint  undertaking  to  pay  the  plaintiff  the 
rent  in  arrear.  The  goods  were  thereupon  delivered  to 
the  defendants,  and  sold  according  to  the  agreement,  by 
the  defendant  designated  thereby.  At  the  trial  the  plaint- 
iff had  a  verdict,  subject  to  the  opinion  of  the  court  upon 
a  case  stating  the  foregoing  facts.  The  court  held  that 
the  agreement  was  not  within  the  statute.  Lord  Ellen- 
borough,  C.  J.,  said:  "Perhaps  this  case  might  be  dis- 
tinguishable from  that  of  Williams  v.  Leper,  if  the  goods 
distrained  had  not  been  delivered  up  to  the  defendants. 
But  here  was  a  delivery  to  them,  in  trust,  in  effect  to  raise 
by  sale  of  the  goods  sufficient  to  satisfy  the  plaintiff's 
demand  ;  the  goods  were  put  into  their  possession,  subject 
to  this  trust,  so  that  in  substance  this  was  an  undertaking 
by  the  defendants  that  the  fund  should  be  available  for  the 
purpose  of  liquidating  the  arrears  of  rent.  There  was 
therefore  a  consideration  for  this  promise,  partly  falling 
within  the  authority  of  Williams  v.  Leper,  partly  within 
that  of  Read  v.  Nash.''\g)  Abbott,  J.,  concurred  with 
the  chief  justice.     But  Bayley,  J.,  while  agreeing  that 

(?)  See  §  130. 


Art.  I.]  Collateral  Undertakings.  675 

Williams  V.  Leper  decided  this  case,  also  thought  that  as 
in  this  case  the  distress  had  been  actually  made,  the  debt 
due  from  the  tenant  was  suspended  at  the  time  the  prom- 
ise was  made,  so  that  there  was  no  debt  then  owing  to 
which  it  could  be  collateral ;  and  with  him  Holroyd,  J., 
agreed.  (A) 

§  584.  The  next  case,  Bampton  v.  Paulin,  12  Moore, 
497,  A.  D.  1827,  has  been,  we  think,  misunderstood,  chiefly 
on  account  of  an  imperfect  and  in  some  respects  erroneous 
report  of  the  case  in  4  Bingham,  264.  The  declaration 
was  to  the  effect  that  one  Donaldson  and  one  Smith  were 
tenants  of  the  plaintiff  and  in  arrear  for  their  rent ;  that 
the  defendant  had  been  employed  by  them  to  sell  certain 
goods  on  the  premises,  which  were  liable  to  be  distrained 
for  the  rent,  and  which  the  plaintiff  intended  to  distrain 
accordingly  ;  and  the  defendant,  in  consideration  of  for- 
bearance to  distrain,  "undertook  to  pay  the  rent  out  of 
the  proceeds  of  the  sale.''''  At  the  trial  the  proof  was  that 
r^  the  defendant  was  an  auctioneer,  who  had  been  employed 
by  a  mortgagee  of  Smith  and  Donaldson ;  and  on  a  demand 
being  made  for  the  rent  by  the  plaintiff' s  sister  he  said, 
"Madam,  I  will  see  that  you  shall  be  paid."  A  verdict 
having  been  rendered  for  the  plaintiff,  the  defendant  applied 
for  a  rule  nisi  to  set  it  aside,  on  the  ground  that  the  prom- 
ise was  within  the  statute,  which  the  court  refused.  Best, 
C.  J.,  ciie^Williams  v.  Leper ;  but  he  rested  his  decision 
upon  the  authority  of  Castling  v.  Auhert,  detailing  the 
facts  of  that  case,  including  the  receipt  of  the  money  by 
the  defendant,  and  saying  that  "it  embraces  the  very  same 
principle  that  is  involved  in  the  present  case."  However 
Park,  J. ,  referred  to  Williams  v.  Leper  alone. (/) 

{h)  Unless  the  plaintiff  in  Williams  v.  Leper  is  to  he  regarded  as  having 
actually  made  a  distress,  this  case,  Castling  v.  Aubert,  and  Walker  v.  Taylor, 
are  the  only  cases  of  the  series,  where  the  consideration  of  the  promise  can 
be  regarded  as  having  been  a  fund  proceeding  fi  >m  the  creditor,  without 
doing  some  violence  to  the  facts.  Here  the  plaintiff  had  the  fund  in  hand, 
but  according  to  the  suggestion <  of  Bayley,  J.,  and  Holroyd,  J.,  that  fact 
sufficed  to  show  that  there  was  no  debt. 

(»^  The  principal  error  of  the  report  in  4  Bingham  is  that  it  omits  all  refer- 


576  COLLATEEAL  UnDEETAKINGS.  [Cll.  XVI. 

§  585.  In  Thomas  v.  Williams,  10  Barnewall  and  Cress- 
well,  664,  A.  D.  1830,  there  was  a  special  count  in  the 
declaration,  founded  upon  the  defendant's  promise,  upon 
which  the  verdict  was  rendered.  At  the  trial  it  was  shown 
that  the  defendant  was  an  auctioneer,  and  had  been 
employed  to  sell  the  goods  of  the  plaintiff's  tenant ;  and 
the  plaintiff,  on  the  day  of  the  sale,  ' '  went  on  the  premises 
with  a  bailiff  and  a  notice  of  distress"  for  an  unpaid 
balance  of  rent  due  the  preceding  Lady  day ;  and  in  con- 
sideration that  he  would  forbear  from  distraining,  the 
defendant  promised  to  pay  him  the  said  balance  of  rent, 
and  also  another  instalment  of  rent  to  become  due,  under 
the  same  lease,  at  Michaelmas  following.  The  plaintiff 
did  not  distrain  and  the  sale  proceeded.  The  plaintiff 
had  a  verdict  for  a  sum  formed  of  the  balance  of  the 
rent  due  at  Lady  day,  and  the  rent  to  become  due  at 
Michaelmas ;  and  a  rule  nisi  was  obtained  to  set  it  aside 
on  the  ground  that  the  promise  was  within  the  statute. 
The  rule  was  made  absolute,  the  court  holding  that  the 
promise  was  within  the  statute,  because  it  included  the 
rent  yet  to  accrue ;  and  being  entire,  and  void  as  to  that, 
it  was  void  in  toto.  But  the  opinion  of  the  court,  delivered 
by  Lord  Tenterden,  C.  J.,  contains  an  instructive  criticism 
upon  some  of  the  preceding  cases.  (,/ ) 

ence  to  the  fact  that  the  debt  was  payable  out  of  the  proceeds,  upon  which 
we  conceive  that  the  case  turned.  It  is  true  that  the  very  brief  report  of 
the  facts  proved,  contained  in  12  Moore,  does  not  in  terms  state  that  the 
promise  was  express  to  pay  out  of  the  proceeds;  but  the  declaration  so 
stated,  and  had  it  not  been  so  proved,  or  to  be  inferred  by  the  jury,  it  is  clear 
that  there  would  have. been  a  variance.  And  the  manner  in  which  Best, 
C.  J.,  states  the  points  of  Castling  v.  Aubert  indicates  very  strongly  that 
such  was  the  promise. 

(y)  His  Lordship  said:  "Several  cases  were  quoted  at  the  bar,  in  support 
of  the  plaintiff's  claim ;  but  there  is  no  case  in  which  the  promise  of  pay- 
ment has  gone  beyond  the  amount  of  the  right  vested  in  the  party  to  whom 
the  promise  was  made,  or  beyond  the  assumed  value  of  the  fund  out  of 
which  the  payment  was  to  be  made."  Referring  to  Edwards  v.  Kelly  and 
Castling  v.  Aubert,  he  said  that  in  each  of  them  the  plaintiff  actually  gave  up 
to  the  defendant  property  in  his  possession,  and  the  promise  was  founded 
upon  a  new  consideration  distinct  from  the  original  debt.     And  in  Williams 


Art.  I.]  CoLLATEKAL  Undkhtakings.  677 

§  586.  In  the  nisi  prius  case  of  WaUier  v.  Taf/lor,  6 
Carrino-toii  niid  Payne,  7o2  (A.  T>.  1834),  one  Cuiidcll,  a 
publican,  liad  died,  and  the  phiiutift",  an  undertake!-,  liad 
been  employed  by  the  widow  to  conduct  the  funeral ;  and 
she  had  placed  in  his  hands  the  beer  and  spirit  licenses 
of  the  deceased,  as  security  for  the  payment  of  his  bill. 
The  defendant  and  his  partner  were  creditors  of  the  estate, 
and  the  defendant,  wishing  to  administer  on  tlie  effects  of 
the  deceased,  offered  the  widow  301.  to  allow  him  to  do  so. 
She  consented,  but  in  addition  stipulated  that  he  should 
pay  the  plaintiff's  bill ;  and  the  defendant  gave  orders  to 
make  an  inventory  and  value  the  stock  ;  but  the  lett(n-s  of 
administration  were  granted  to  the  defendant's  partner. 
The  defendant  after  the  grant  of  letters,  (and  after  a  threat 
of  proceedings  against  the  plaintiff  had  been  mad*,^  by  the 
administrator),  applied  to  the  plaintiff  to  deliver  up  the 
licenses  to  him ;  and  the  plaintiff  did  so  on  his  promising 
to  pay  the  bill,  which  was  delivered  at  the  same  time  to 
the  defendant,  made  out  against  the  administrator.  The 
plaintiff  having  brought  this  action  upon  the  defendant's 
promise,  it  was  objected  at  the  trial  that  it  was  within  the 
statute,  but  Tindal,  C.  J.,  said:  "But  it  is  a  new  contract 


V.  Leper  there  was  a  power  of  distress  and  an  intention  to  enforce  it,  and 
the  judges  must  have  considered  that  power  as  equivalent  to  an  actual  dis- 
tress. After  intimating  a  doubt  respecting  the  correctness  of  that  decision, 
he  said  that  at  all  events  it  did  not  go  beyond  the  rent  then  actually  due,  and 
he  added:  "But  this  reasoning  will  not  apply  to  the  accruing  and  future 
rent.  The  plaintiff  could  not  have  distrained  for  that  rent.  The  defendant, 
by  paying  all  that  was  due  at  Lady  day,  might  have  proceeded  to  sell  the 
goods.  If  that  sum  were  paid  or  secured,  the  plaintiff  sustained  no  loss  or 
detriment  by  the  sale  of  the  goods.  So  that  the  promise  to  pay  the  accruing 
rent  exceeded  the  consideration,  and  cannot  be  sustained  on  the  ground  on 
which  the  cases  referred  to  are  to  be  sustained ;  but  is  nothing  more  than 
a  promise  to  pay  money  that  would  become  due  from  a  third  person,  and  is 
within  the  words  of  the  statute,  and  the  mischief  intended  to  be  remedied 
thereby.*'  This  case  seems  to  be  entirely  at  war  with  the  theory,  that  those 
where  the  property  delivered  to  the  defendant  was  not  in  the  actual  possess- 
ion of  the  plaintiff,  can  be  sustained  on  the  ground  of  a  purchase.  P'or  in 
that  aspect  it  would  be  immaterial  what  price  the  defendant  agreed  to  pay 
therefor. 

73 


678  Collateral  CJndeetakings.         [Ch.  xvl 

under  a  new  state  of  circumstances.  It  is  not  '  I  will  pay 
if  the  debtor  cannot ; '  but  it  is  '  in  consideration  of  that 
which  is  an  advantage  to  me,  I  will  pay  you  this  money.' 
There  is  a  whole  class  of  cases,  in  which  the  matter  is 
excepted  from  the  statute,  on  account  of  a  consideration 
arising  immediately  between  the  parties.  It  is  a  new  con- 
tract ;  it  has  nothing  to  do  with  the  statute  of  frauds  at 
all."  Afterwards  in  summing  up  to  the  jury,  he  said  that 
the  plaintiff  had  a  claim  on  Mrs.  Cundell  for  the  expenses 
of  the  funeral,  and  the  administrator  was  also  liable  for 
them  ;  but  it  was  for  the  jury  to  say  whether  the  defend- 
ant made  the  promise ;  and  the  plaintiff  had  a  verdict.  (A:) 

§  587.  In  Clancy  v.  Piggott,  4  JSTevile  and  Manning,  496, 
A.  D.  1835,  (Z)  the  declaration  stated  that  one  Moore  was 
indebted  to  the  plaintiff  in  the  sum  of  five  pounds  ;  that 
the  plaintiff  had  in  his  possession  goods  of  Moore,  of  the 
value  of  twenty  pounds,  as  security  for  the  payment  of 
his  debt,  and  having  a  lien  thereon  ;  and  in  consideration 
that  the  plaintiff,  at  the  defendant' s  request,  would  give 
up  the  possession  of  the  goods  to  Moore,  and  abandon  his 
lien  thereon,  the  defendant  promised  to  pay  him  the  five 
pounds.  To  which  the  defendant  pleaded  that  the  sup- 
posed promise  was  contained  in  a  writing  set  forth  in  the 

(h)  In  Selwyn's  Nisi  Prius,  thirteenth  EngUsh  edition,  page  775,  the 
author  cites  the  remark  contained  in  the  note  to  Forth  v.  Stanton,  1  Wil- 
liams's Saunders,  211,  that  in  Houlditch  v.  Milne,  3  Espinasse,  86,  (§  579), 
the  credit  must  have  been  exclusively  given  to  the  defendant;  but  he  says 
that  this  explanation  will  not  apply  to  Walker  v.  Taylor,  and  that  it  would 
seem  that  both  of  those  cases  are  overruled  by  Gull  v.  Lindsay,  4  Exchequer 
45  (§  589).  And  in  Chitty  on  Contracts,  eighth  English  edition,  478,  it  is 
said  that  Walker  v.  Taylor  cannot  be  supported  within  the  rule  in  W^illiams's 
Saunders.  The  chief  justice's  remark  affords  considerable  support  to  the 
doctrine,  that  where  the  leading  object  of  the  promisor  is  to  subserve  his 
own  interest,  the  promise  is  not  within  the  statute;  but  upon  the  facts  of 
the  case,  it  was  simply  the  surrender  of  a  lien  (although  perhaps  untenable) 
to  the  representative  of  the  owner. 

(0  S.  C,  2  Adolphus  and  Ellis,  473,  and  1  Harrison  and  Wollaston,  20. 
The  former  report  contains  a  serious  error,  in  stating  the  amount  of  the  debt 
as  50?.,  while  agreeing  with  the  others  that  the  fund  amounted  to  only  20?. 


Art.  I.]  Collateral  Undertakings.  579 

plea,  and  which  was  iu  the  i'olh)wiiig  words:  "  Sir,  I 
hereby  agree  to  see  you  paid  witliin  three  montl.s  from 
date  hereof,  the  amount  of  5Z.  due  to  you  on  account  of 
Mr.  George  Moore,  junior."  On  demurrer  to  this  plea, 
the  court  unanimously  gave  judgment  for  the  defendant, 
because  the  writing  did  not  express  the  consideration,  and 
the  plaintiff  by  his  demurrer  had  admitted  that  it  con- 
tained the  real  contract  between  the  parties,  the  case  being 
one  to  which  the  statute  applied.  (7/i) 

§  588.  In  Tomllnson  v.  Gell,  G  Adolphus  and  Ellis,  664, 
A.  D.  1837,  (?i)  the  declaration  stated  iu  substance  that  the 
defendant  and  tlie  plaintiff,  the  latter  acting  with  the  con- 
sent of  one  Buxton,  had  settled  a  suit  in  equity,  which  had 
theretofore  been  pending  in  favor  of  Buxton  against  the 
defendant,  in  wliich  the  plaintiff  had  been  solicitor  for 
Buxton,  and  wherein  certain  costs  and  charges  had  be- 
come due  to  him  as  such  ;  that  the  terms  of  such  settle- 
ment were  that  the  suit  should  be  discontinued,  and  that 
the  defendant  should  pay  to  the  j^laintiff  his  costs ;  and 
that  in  consideration  thereof  the  defendant  promised  the 


(m)  None  of  the  judges  made  special  reference  to  the  previous  lien  cases 
(although  counsel  cited  and  discussed  them,)  except  Littledale,  J.,  who  said: 
"  It  is  clear  to  me  even  upon  the  declaration  in  this  case,  that  this  was  a 
promise  to  pay  the  debt  of  another  person,  notwithstanding  all  that  is  said 
about  the  lien  on  the  goods;  but  upon  the  construction  of  tlie  statute  of 
frauds,  it  has  been  held  that  if  there  be  a  nev/  consideration  moving  from  the 
plaintiff  to  the  defendant,  though  it  is  a  promise  to  pay  the  debt  of  another 
person,  it  need  not  be  in  writing.  Upon  the  face  of  this  declaration  there 
is  a  new  consideration,  which  prima  facie  would  appear  to  make  a  promise 
in  writing  unnecessary.  But  the  defendant,  in  the  beginning  of  his  plea, 
avers  that  the  promise  mentioned  in  the  declaration  is  a  special  promise  to 
answer  for  the  debt  and  default  of  another  person,  which  is  no  more  than 
what  is  stated  in  the  declaration  itself;  and  then  it  goes  on  to  state  that 
there  was  no  agreement,"  etc.  Although  these  remarks  are  obscure,  and 
doubtless  badly  reported,  they  sufiicicntly  indicate  that  the  grt^und  of  the 
distinction  between  this  case  and  the  others  was  that  the  property  was 
delivered  back  to  the  debtor. 

(n)  S.  C,  1  Nevile  and  Perry,  588,  and  Wiilniore,  WoUaston  and  Davi- 
son, 229. 


580  COLLATEEAL   UNDERTAKINGS.  [Cll.  XVI. 

pliiintiff  to  pay  the  costs.  The  defendant  pleaded  that 
there  was  no  writing,  etc.,  and  the  phiintiff  demurred  to 
the  plea.  Judgment  was  given  for  the  defendant  upon 
the  demurrer,  on  the  ground  that  the  phiintiff' s  client  was 
primarily  his  debtor,  and  the  plaintiff  had  not  discharged 
him.  But  Patteson,  J.,  after  concui'ring  with  the  other 
judges,  in  their  ruling  that  this  wag  a  promise  to  pay  the 
debt  of  another,  added:  "It  is  said,  however,  that  a  new 
consideration  arose  from  the  discontinuance  of  the  suit.  I 
do  not  think  it  is  a  new  one.  The  cases  on  that  point  have 
been  where  something  has  been  given  up  by  the  plaintiff 
and  acquired  by  the  party  making  the  promise ;  as  the 
security  of  goods  for  a  debt."(o) 

§  589.  The  next  case  of  the  series  is  Oull  v.  Lindsay^ 
4  Exchequer,  45,  A.  D.  1849,  (^)  which  is  frequently  cited 
as  having  some  bearing  upon  the  proposition,  that  the 
promise  is  out  of  the  statute,  where  the  leading  object  of 
the  promisor  was  to  subserve  his  own  interest.  But 
although  the  declaration  was  perhaps  adapted  to  present 
that  question,  the  case  seems  to  have  been  disposed  of  on 
the  ground  of  a  variance  between  the  declaration  and  the 
proof ;  and  its  effect  upon  the  present  subject  of  inquiry 
is  consequently  quite  obscure ;  although  some  of  the 
observations  of  Pollock,  C.  B.,  militate  against  the  exist- 
ence of  such  a  rule  of  law.(2') 

(o)  The  report  in  1  Nevile  and  Perry  omits  from  this  remark  the  import- 
ant words,  "and  acquired  by  the  party  making  the  promise;"  but  in  Will- 
more,  Wollaston  &  Davison  the  expression  is  even  stronger  than  that  quoted 
in  the  text,  viz. :  "  Where  the  plaintiff,  having  acquired  something  more  than 
the  original  claim,"  "as  a  lien  by  distraining  goods  in  the  hands  of  the 
defendant,  has  given  up  that  advantage  to  the  defendant."  See  Prentice  v. 
Wilkinson,  5  Abbott's  Practice  Reports,  N.  S.,  49,  cited  ante,  §  137. 

(p)  S.  C,  18  Law  Journal,  N.  S.,  Exch.,  354. 

{(])  The  first  count  of  the  declaration  stated,  in  substance,  that  the  plaintiff 
was  a  ship  broker,  and  had  been  employed  by  the  owners  of  a  certain  ship 
to  procure  a  charter  party,  upon  terms  that  he  should  collect  the  fieight  and 
thereout  retain  his  commissions ;  that  he  procured  such  a  charter  party,  and 
the  ship  arrived  in  London  pursuant  thereto;  that  before  her  arrival,  one  of 
the  original  owners  had  sold  out  his  interest  in  the  ship  to  another  person; 


Alt.  I.]  Collateral  IJNDEiiTAKiNCis.  581 

§  590.  The  most  recent  of  tliese  cases  is  Fitzgerald  v. 
Dressier,   7  Common  Bencli  Eeports,   New  Series,   374, 

that  the  plaintiff  was  about  to  collect  the  freijjht  so  as  to  satisfy  his  com- 
mission; that  the  defendants  had  been  employed  as  the  brokers  of  one  of  the 
original  owners,  and  of  the  person  who  had  purchased  an  interest  as  aforesaid, 
the  two  interests  represented  by  them  amounting  to  60-64ths  of  the  whole, 
that  by  obtaining  possession  of  the  ship  they  would  receive  their  commissions 
for  rechartering  her;  that  they  were  otherwise  interested  in  obtaining 
possession  and  control  of  her;  and  that  in  consideration  thereof,  and  that  the 
plaintiff  would  relinquish  his  right  to  collect  the  freight,  the  defendants 
promised  to  pay  him  his  commission.  There  were  the  usual  averments  of 
performance  by  the  plaintiff,  and  of  a  breach  on  the  part  of  the  defendanL'?. 
To  this  was  subjoined  the  common  counts.  At  the  trial  the  plaintiff  proved 
substantially  the  facts  set  forth  in  the  declaration,  to  the  time  of  the  arrival 
of  the  ship.  It  further  appeared  that  after  her  arrival,  the  defendants' 
principals  had  directed  a  stop  to  be  put  upon  the  cargo,  for  the  freight 
payable  under  the  charter  party;  as  the  charterers  claimed  to  hold  a  bottomry 
bond  on  the  ship  for  advances,  etc.,  and  to  retain  the  freight  due  from  them 
on  account  thereof;  and  also  that  the  captain  refused  to  deliver  up  the  ship's 
certificate  till  his  accounts  should  be  settled ;  thereupon  the  plaintiff,  the 
defendants,  the  captain,  and  the  charterers  entered  into  a  written  agree- 
ment; the  substance  of  which  was,  as  far  as  the  plaintiff's  claim  was  con- 
cerned, that  none  of  the  parties  to  the  agreement  should  put  any  stop  on 
the  freight,  and  that  the  defendants  would  pay  the  plaintiff  his  commission. 
The  defendants  objected  that  there  was  a  variance  between  the  declaration 
and  the  agreement,  and  that  the  latter  was  incompetent  within  the  statute 
of  frauds,  because  it  did  not  disclose  any  consideration  moving  from  the 
plaintiff.  The  plaintiff  had  a  verdict,  with  leave  to  the  defendants  to  move 
to  set  it  aside  and  enter  a  verdict  for  the  defendants  or  a  nonsuit,  the  court 
to  have  the  same  power  of  amendment  as  the  judge  at  nisi  prius.  A  rule 
nisi  was  obtained  accordingly,  which  after  argument  was  made  absoluto, 
Pollock,  C.  B.,  delivering  the  opinion.  He  said  that  the  consideration  stated 
in  the  written  agreement  was  essentially  different  from  that  alleged  in  the 
declaration.  "  It  is  not,"  said  he,  "  an  agreement  by  the  defendant  to  pay, 
in  consideration  of  the  plaintiff  abandoning  his  rights,  arising  from  several 
matters  stated  by  way  of  inducement;  but  it  is  an  agreement  in  considera- 
tion of  his  agreeing  not  to  put,  or  cause  to  be  put,  a  stop  on  the  freight  It 
is  not  in  consideration  of  his  not  asserting  any  lien  upon  the  freight,  with- 
out regard  to  the  question  whether  he  was  or  was  not  entitled  to  such  lien." 
The  learned  Chief  Baron  added  that  the  inducement  was  material  as  the 
declaration  was  framed;  but  immaterial  as  to  the  contract  established.  This 
was  a  contract  to  pay  the  debt  cf  another  within  the  statute  of  frauds;  for, 
although  the  defendants  agreed  to  pay  the  plaintifl,  the  debt  still  remained 
due  to  him  from  the  former  owners.     "  It  was  therefore  necessary  that  the 


582  Collateral  Undertakings.         [Cli.  xvi. 

decided  in  tlie  Common  Pleas  A.  D.  1859.  (;*)  There  the 
evidence  given  at  the  trial,  on  the  part  of  the  plaintiffs, 
tended  to  prove  the  following  facts.  The  plaintiffs,  who 
were  the  importers  of  a  cargo  of  linseed  which  was  yet  to 
arrive,  sold  the  linseed,  through  their  brokers,  to  Haakman 
and  Co.  at  a  certain  price  per  quarter,  payable  fourteen 
days  after  landing  ;  subsequently,  and  before  the  arrival 
of  the  linseed,  Haakman  and  Co.,  through  the  same 
brokers,  sold  it  to  one  Schenck  at  an  increased  price, 
payable  at  the  same  time ;  and  after  the  linseed  had 
arrived,  but  before  it  had  been  landed,  Schenck,  through 
the  same  brokers,  sold  it  to  the  defendant  at  a  further 
advance,  payable  at  fourteen  days  from  the  day  of  sale. 
Five  days  after  the  last  sale,  the  defendant,  through  his 
clerk,  applied  to  the  brokers  for  a  delivery  order  for  the 
seed  ;  and  they  having  referred  the  clerk  to  the  plaintiffs, 
a  conversation  took  place  between  the  plaintiffs'  clerk  and 
the  defendant' s  clerk,  the  substance  of  which  was,  that  if 
the  plaintiffs  would  give  the  defendant  the  delivery  order, 
the  defendant  would  pay  them  for  the  seed.  An  order 
was  accordingly  given  to  deliver  the  seed  to  the  brokers, 
and  it  was  taken  by  the  defendant' s  clerk  to  the  brokers, 
who,  on  being  informed  by  him  that  he  had  promised 
the  plaintiffs,  in  behalf  of  the  defendant,  to  pay  for  the 
seed,  indorsed  the  order  so  as  to  make  the  seed  deliverable 
to  the  defendant ;  and  upon  the  order  the  defendant  received 
the  seed.  The  next  day  he  sent  to  the  brokers  a  check  for 
900Z.  on  account  of  his  purchase.  The  seed  having  been 
afterwards  landed  and  measured,  it  was  discovered  that 
the  amount  payable  to  the  plaintiffs  by  the  terms  of  their 
contract  with  Haakman  and  Co.  was  971Z.  155.  Qd.,  and 
this  action  was  brought  to  recover  the  difference  of  111. 
155.  Qd.     At  the  trial  the  plaintiffs  had  a  verdict ;  and  the 

consideration  should  appear  in  writing,  signed  by  the  defendants;  and  the 
consideration,  we  have  already  stated,  is  a  very  different  consideration  from 
that  declared  on."  There  could  be  no  amendment,  he  continued,  because  it 
was  not  a  variance ;  the  amendment  would  require  striking  out  the  induce- 
ment, and  introducing  new  matter  creating  a  totally  different  consideration. 
(r)  S.  C,  29  Law  Journal,  N.  S.,  C.  P.,  113;  5  Jurist,  N.  S.,  598. 


Art.  I  ]  Collateral  Undertakings.  683 

defendant  obtained  a  rule  nisi  to  set  aside  the  verdict  and 
enter  a  nonsuit,  on  the  ground  that  the  contract  slioiild 
have  been  in  writing ;  and  on  two  other  grounds,  one  of 
whicli  was  that  the  evidence  did  not  show  that  the  defend- 
ant authorized  his  clerk  to  make  the  contract. 

§  591.  Upon  the  last  mentioned  ground  the  rule  was 
made  absolute  by  a  majority  vote ;  but  all  the  judges 
agreed  that  the  contract  was  not  within  the  statute. 
Cockburn,  C.  J.,  upon  that  point  said  that  the  rule  is 
correctly  laid  down  in  the  notes  to  Forth  v.  Stanton^ 
1  Williams's  Saunders,  page  211e,  that  "the  question 
whether  each  particular  case  comes  within  this  clause  of 
the  statute  or  not,  depends,  not  on  the  consideration  of 
the  promise,  but  on  the  fact  of  the  original  party  remain- 
ing liable,  coupled  with  the  absence  of  any  liability  on 
the  part  of  the  defendant  or  Ms  property  except  such  as 
arises  from  his  express  promise."  His  Lordship  added 
that  the  proposition  must  be  considered  as  embracing 
the  qualification  at  the  end  of  this  passage ;  that  it  is 
"truly  stated  there,  as  the  result  of  the  authorities,  that 
if  there  be  something  more  than  a  mere  undertaking  to 
pay  the  debt  of  another,  as  where  the  property,  in  con- 
sideration of  the  giving  up  of  which  the  party  enters  into 
the  undertaking,  is  in  point  of  fact  his  own,  or  is  property 
in  which  he  has  some  interest,  the  case  is  not  within  the 
provision  of  the  statute;  which  was  intended  to  apply  to 
the  case  of  an  undertaking  to  answer  for  the  debt,  default, 
or  miscarriage  of  another,  where  the  person  making  the 
promise  has  himself  no  interest  in  the  property  which  is 
the  subject  of  the  undertaking."  In  this  case,  he  added, 
the  seed  was  the  property  of  the  defendant,  subject  to  the 
plaintiffs'  lien  for  the  price,  the  giving  up  of  this  lien 
being  the  consideration  for  the  promise  ;  consequently  the 
case  clearly  comes  within  the  qualification  in  the  note  to 
Williams's  Saunders.  Williams,  J.,  said  that  the  defend- 
ant was  at  the  time  of  the  promise  the  owner  of  the  linseed, 
subject  to  the  plaintiff's'  lien  for  the  contract  price,  and  the 
effect  of  the  promise  was  neither  more  nor  less  than  to  get 


584  Collateral  Undioktakinos.         [Cli.  xvi. 

rid  of  the  incumbrance ;  or,  in  other  words,  to  buy  off  tlie 
plaintiffs'  lien,  and  for  tliat  reason  the  case  was  not  within 
the  statute.  He  added  that  Williams  v.  Leper  proceeded 
upon  the  ground,  that  the  promise  was  to  pay  a  debt  to 
which  the  defendant' s  property  was  subject,  and  not  simply 
a  promise  to  answer  for  tlie  debt  or  default  of  another. 
That  this  was  in  accordance  with  Castling  v.  Auhert  and 
Anstey  v.  Marden,  which,  as  the  note  referred  to  by  the 
Chief  Justice  stated,  proceeded  upon  the  ground  that  the 
transaction  was  in  effect  a  purchase  of  an  interest  in  the 
property,  and  not  a  mere  promise  to  pay  the  debt  of 
another.  And  in  these  opinions  Crowder,  J.,  and  Willes, 
J.,  concurred. (5) 

(s)  In  the  Law  Journal  report  it  is  said  that  a  case  was  settled  for  an  appeal 
from  this  decision  to  the  Court  of  Exchequer  Chamber,  but  the  appeal  was 
abandoned.  The  head  note  to  the  report  in  the  Jurist  states  the  decision 
upon  the  application  of  the  statute  thus:  "In  such  case,  the  time  for  B's 
payment  to  A  of  the  price  agreed  on  not  having  arrived,  when  C  applied 
for  the  delivery  order,  his  promise  to  pay  for  the  goods,  if  A  would  take  oft 
his  lien,  would  not  have  been  a  promisQ  to  pay  for  the  debt,  default,  or  mis- 
carriage of  another."  But  none  of  the  judges  made  any  allusion  to  the  fact 
that  the  debt  from  Haakman  and  Co.  to  the  plaintifis,  was  not  payable 
when  the  defendant  applied  for  the  order;  on  the  contrary  the  decision  was 
expressly  put  upon  a  ground,  equally  appHcable  to  a  case  where  the  debt  was 
presently  payable.  As  a  part  of  this  series  of  cases  are  sometimes  also  cited 
Love's  case,  1  Salkeld,  28,  A.  D.  1706,  Anstey  v.  Harden,  4  Bosanquet  and 
Puller,  124,  and  Stephens  v.  Pell,  2  Crompton  and  Meeson,  710,  A.  D. 
1834.  Love's  case  holds  that  a  sheriS"  may  recover  upon  a  promise  of  a 
stranger  to  the  judgment,  that  he  would  pay  the  amount  due  on  a  fieri 
facias,  in  consideration  that  the  sheriff  would  restore  goods  which  he  had 
levied  on  ;  but  nothing  was  said  in  the  case  relative  to  the  effect  of  the  statute. 
Anstey  v.  Harden  has  been  heretofore  fully  cited.  (See  ante,  §  118.) 
Stephens  v.  Pell  is  merely  to  the  effect  that  where  the  defendant,  an  assignee 
in  bankruptcy,  promised  the  plaintiff  to  pay  him  a  sum  due  from  the  bank- 
rupt for  rent  in  arrear,  "out  of  the  sale  of  the  produce  of  the  effects,"  in 
consideration  of  his  withdrawing  a  distress  upon  the  goods;  and  the  goods 
in  fact  sold  for  more  than  the  amount  of  the  rent  in  arrear;  the  plaintiff, 
upon  the  execution  of  a  writ  of  inquiry,  cannot  be  required  to  prove  that 
there  was  a  surplus  to  meet  his  demand,  after  satisfying  certain  executions 
which  were  prior  to  the  distress.  The  case  turned  upon  the  true  construction 
of  the  defendant's  promise ;  which,  for  aught  that  appears,  was  in  writing. 


Art.  II.]  Collateral  Undertakings.  586 

ARTICLE  11. 

Ameriogn  oases  wherein  the  role  is  established,  and  its  application  illnstrated. 

§  502.  The  order  wliich  we  liavi^  adopted,  for  tlie  discus- 
sion of  tlie  perjjlexiiig  cxuestioiis  connected  with  the  sub- 
ject now  under  examination,  defers  till  the  next  chapter 
the  consideration  of  most  of  the  legal  tlieories,  based  upon 
the  earlier  decisions  of  the  foregoing  series.  Chief  among 
these  is  the  doctrine  adopted  by  Chief  Justice  Kent,  in 
Leonard  v.  Vredenburgh,  8  Johnson,  23,  as  the  definition 
of  his  third  class  of  cases;  namely,  "when  the  promise 
to  pay  the  debt  of  another  arises  out  of  some  new  and 
original  consideration  of  benefit  or  harm,  moving  between 
the  newly  contracting  parties. " ('"'^)  Such  cases,  he  said, 
are  not  within  the  statute  of  frauds.  The  application  of 
this  doctrine  to  the  principles  now  under  examination  is 
so  direct,  that  a  glance  at  its  consequences  upon  this  class 
of  cases  is  also  necessary  in  this  place. 

§  693.  It  seems  to  be  quite  evident,  although  a  very  able 
jurist  has  forcibly  defended  the  contrary  conclusion,  (/>) 
that  this  doctrine  practically  makes  the  application  of  the 
statute  depend,  in  this  class  of  cases,  upon  the  nature  or 
character  of  the  consideration.  Whether  the  discharge 
of  the  lien  would  operate  to  relieve  the  property  of  the 
promisor,  or  of  the  original  debtor,  is  immaterial  under  a . 
rule,  which  merely  requires  the  consideration  to  be  new 
and  original ;  to  move  between  the  newly  contracting 
parties  ;  and  to  consist  of  benefit  to  the  one,  or  harm  to 
the  other.  It  must  of  course  be  new,  or  it  could  not 
satisfy  the  common  law ;  it  must  be  original,  that  is  to 
say,  something  more  than  forbearance  to  the  debtor ;  but 
in  either  event,  the  request  of  the  promisor  is  ample  to 
satisfy  the  requirement,  that  it  should  move  between  the 
new  parties ;  and  if  it  w^as  of  no  benefit  to  him,  it  was  at 
least  a  damage  to  the  promisee. 

(a)  See  ante,  §  63. 

Q})  Comstock,  C.  J.,  in  Mallory  v.  Gillett,  post,  §  597  and  note. 
74 


/586  COLLATEKAL   U:NDERTAKINGS.  [Cll.  XVI 

§  594.  Accordingly  the  doctrine  that  the  surrender, 
either  to  the  new  promisor  or  to  the  original  debtor,  of 
any  lien  available  for  the  security  of  the  promisee,  suf- 
fices to  take  out  of  the  statute  a  promise  to  pay  another's 
debt,  became  generally  prevalent  in  the  United  States ; 
and  was  understood,  until  comparatively  recently,  to  be 
a  settled  principle  of  American  jurisprudence.  But  it  is 
now  admitted  by  the  best  authorities,  that  the  true  rule 
requires  that  in  all  such  cases  the  promisor  must  have 
been  interested  in  the  property,  upon  which  the  lien  at- 
tached, so  that  he  acquired  whatever  was  surrendered  by 
the  promisee  ;  and  that  wherever  the  lien  was  surrendered 
to  the  original  debtor,  the  promise  cannot  be  taken  out  of 
the  statute  for  any  reason  depending  upon  the  existence 
of  a  lien.  This  doctrine  must,  we  think,  be  regarded  as 
a  distinct  declaration  that  Chief  Justice  Kent's  third 
proposition  is  not  law.  The  American  authorities  have 
not,  however,  quite  adopted  the  comprehensive  reason  for 
this  conclusion  which  aj)pears  to  prevail  in  England ; 
although  we  think  the  tendency  of  the  more  recent  decis- 
ions is  in  that  direction. 

§  595.  It  is  unnecessary  to  examine  the  cases,  where  a 
verbal  promise  to  pay  another's  debt  has  been  sustained, 
under  the  old  rule,  by  reason  of  the  surrender  of  a  lien 
upon  the  debtor' s  property.  Some  of  them  have  already 
been  cited  in  the  preceding  pages,  the  circumstances  per- 
mitting them  to  be  ranged  under  some  other  principle 
which  is  yet  recognized  as  controlling.  In  many  of  the 
others,  the  facts  were  such,  that  the  decision  can  be  sus- 
tained within  the  rule  as  it  is  now  understood  ;  but  as  these 
profess  to  depend  upon  the  obsolete  rule  it  would  be  a 
needless  consumption  of  time  and  space  to  examine  them 
in  detail.  However,  some  of  them  will  be  incidentally 
referred  to  in  the  notes. 

§  596.  The  modern  doctrine  upon  this  subject  derives 
its  origin  from  Nelson  v.  Boynton,  44  Massachusetts  (3 
Metcalf ),  396,  decided  A.  D.  1841.     There  the  plaintiff  had 


Art.  II.]  Collateral  Undertakings.  587 

commenct^d  a  suit  against  the  father  of  tlie  defendant, 
upon  two  notes  made  by  the  latter,  and  had  issued  an 
attachment  in  that  suit,  and  levied  the  same  upon  the 
father's  real  estate;  wh(^reupon,  in  consideration  that  the 
plaintiff  would  discontinue  that  suit,  the  defendant  orally- 
promised  to  pay  the  notes  ;  and  this  action  was  brought 
upon  that  promise.  In  the  court  below,  the  jury  were 
instructed  that  the  promise  was  not  within  the  statute, 
and  the  plaintiff  had  a  verdict,  which  was  set  aside  by  the 
Supreme  Court  and  a  new  trial  granted,  Shaw,  C.  J., 
delivering  the  opinion  of  the  court,  after  pointing  out 
the  general  object  of  the  statute,  and  the  general  rules 
for  its  construction,  said  that  it  has  been  argued  that 
this  case  was  within  Williams  v.  Leper,  and  its  kindred 
cases,  in  which  the  creditor  had  a  lien  upon  })roperty, 
which  was  discharged  at  the  request  and  for  the  benefit 
of  the  party  promising.  He  cited  and  commented  upon 
several  of  those  cases,  and  added:  "The  rule  to  be 
derived  from  the  decisions  seems  to  be  this :  that  cases 
are  not  considered  as  coming  within  the  statute,  when 
the  party  promising  has  for  his  object  a  benefit  which  he 
did  not  before  enjoy,  accruing  immediately  to  himself; 
but  where  the  object  of  the  promise  is  to  obtain  the  release 
of  the  person  or  property  of  the  debtor,  or  other  forbear- 
ance or  benefit  to  him,  it  is  within  the  statute.'"  Apply- 
ing that  rule  to  the  present  case,  he  said  that  although 
the  effect  of  the  discontinuance  of  the  action  w^as  to  dis- 
charge the  attachment,  yet  that  was  incidental  only ; 
and  the  leading  object  and  purj)ose  were  the  relief  and 
benefit  of  the  father,  and  not  of  the  defendant.  ' '  It  does 
not  appear,"  he  remarked,  "that  the  son  had  any  interest 
in  the  estate  released,  or  object  or  piirpose  of  his  owm  to 
subserve."  It  was  therefore  the  ordinary  case  of  a  son 
becoming  surety  for  his  father's  debt,  in  consideration  of 
forbearance ;  and  therefore,  not  being  in  writing,  it  was 
within  the  statute,  (c) 

(c)  The  principle  that  the  surrender  by  the  promisee  of  a  lien  upon  prop- 
erty, or  othel  security  for  the  payment  of  the  debt,  will  take  the  promise 


588  COLLATEIIAL   UNDERTAKINGS.  [Cll.  XVI. 

§  597.  But  tlie  question  received  sucli  a  tliorougli  dis- 
cussion, and  the  rule  now  recognized  was  so  ably  sustained, 
upon  principle  and  authority,  in  Mallory  v.  Oillett,  21 
New  York,  412,  (cZ)  decided  in  the  Court  of  Appeals  of  that 
State,  A.  D,  1860,  that  it  may  be  regarded  as  having  been 
set  at  rest  by  that  decision.  There  the  plaintiff,  at  the 
request  of  one  Haines,  had  taken  upon  his  dry  dock  a 
canal  boat,  and  put  upon  it  repairs  to  the  value  of  $125  ; 
and  having  a  lien  upon  it  for  the  repairs,  he  refused  to 
deliver  it  to  Haines  or  any  other  person,  till  that  amount 
should  be  paid  ;  whereupon  the  defendant,  in  considera 
tion  of  the  delivery  of  the  boat  to  Haines,  verbally  prom- 
ised the  plaintiff  to  pay  the  amount  due  for  repairs.  The 
boat  was  thereupon  delivered  to  Haines,  and  the  defend- 
ant paid  the  plaintiff  $50,  and  refused  to  pay  tlie  residue ; 
whereupon  this  action  was  brought  to  recover  upon  the 
promise.  The  defendant  succeeded  in  the  court  below, 
upon  his  objection  that  the  promise  was  within  the  statute 
of  frauds ;  and  the  plaintiff  appealed  to  the  Court  of 
Appeals,  where  the  judgment  of  the  Supreme  Court  was 
affirmed  by  a  vote  of  five  judges  against  three.  The 
opinion  of  the  majority,  delivered  by  Comstock,  C.  J., 
from  which  quotations  have  been  frequentlj'^  made  in 
previous  portions  of  this  volume,  covers  upwards  of 
twenty  pages  of  the  printed  report ;  and  notwithstanding 
that  it  is  fairly  open  to  criticism,  upon  some  of  the  col- 
lateral points  discussed  by  him,  we  exaggerate  nothing  in 
saying  that  upon  the  whole,  it  surpasses  in  clearness  and 
precision  of  language,  force  of  reasoning,  and  discriminat- 
ing criticism  of  previous  adjudications,  any  judical 
determination  ever  delivered  upon  this  branch  of  the 
statute  of  frauds.  The  most  meagre  outline  of  the  argu- 
ment is  all  that  our  limits  permit  us  to  give  in  the  sub- 
out  of  the  statute,  only  when  the  defendant  acquired  what  was  surrendered, 
was  also  clearly  stated  in  Curtis  v.  Brown,  59  Massachusetts  (5  Gushing,) 
488,  A.  D.  1850;  Dexter  v.  Blanchard,  93  Massachusetts  (11  Allen),  365, 
A.  D.  1865;  and  Burr  v.  Wilcox,  95  Mat?eachusetts  (13  Allen),  2G9,  A.  D. 
1866. 

(d)  Affirming  S.  C,  23  Barbour,  610. 


Art.  II.]  Collateral  L'ndertakings.  689 

joined  note.(e)  It  will  appear  tluTcfroiii  that  the  decision, 
as  in  Nelson  v.  B<>i/)it<>n,  was  put  distinctly  upon  the 
ground  that  the  defendant  liad  no  personal  interest  or 

(e)  After  demonstrating  very  clearly,  upon  principle,  that  the  question 
under  the  statute  can  never  arise,  unless  there  is  a  new  and  sufficient  con- 
sideration, because,  without  such  a  consideration,  a  promise  to  pay  the  pre- 
cedent debt  of  another  will  be  void  at  common  law;  that  the  question  under 
the  statute  is  always  whether  there  was  a  debtor  and  a  surety,  not  when  the 
debt  was  created,  or  what  was  the  consideration  of  the  collateral  promise ; 
that  the  validity  of  a  verbal  promise  under  the  statute  does  not  depend  upon 
the  comparative  merits  of  the  different  kinds  of  consideration  upon  which  it 
may  be  founded,  all  considerations  being  in  that  respect  on  an  equal  footing; 
and  therefore  that  if  the  release  of  a  security  to  the  debtor  takes  out  of  the 
statute  a  stranger's  promise  to  pay  the  debt,  the  same  result  must  inevitablv 
follow  with  respect  to  any  promise,  the  subject  of  which  is  a  third  person's 
antecedent  debt;  the  learned  Chief  Justice  proceeded  to  examine  critically 
the  classification  in  Leonard  v.  Vredenburgh  (ante,  §  63),  which  he  thought 
was  strictly  correct,  although  it  had  been  misapprehended.  Regarding,  he 
said,  the  connecting  remarks  of  Chief  Justice  Kent,  it  will  appear  that  the 
present  case  belongs  to  the  second  class,  and  not  to  the  third;  because  although 
both  of  them  are  promises  to  pay  a  third  person's  antecedent  debt,  the 
second  expressly  includes  cases  where  the  undertaking  is  subsequent  to  the 
creation  of  the  debt,  and  founded  upon  a  further  or  new  consideration ;  and 
if  this  case  be  put  within  the  third  class,  there  will  be  no  second  class  left. 
The  distinction  between  the  second  and  the  third  class  is  not  in  the  nature 
of  the  consideration,  but  in  respect  to  the  persons  between  whom  it  moves; 
in  the  former  it  moves  to  the  debtor,  and  may  consist  of  any  thing  of  benefit 
to  him  or  harm  to  the  creditor,  in  which  the  new  promisor  has  no  concern; 
in  the  latter,  however,  it  moves  to  the  new  promisor;  "and  that  also,"  he 
added,  ''as  in  all  other  cases  of  contract,  may  consist  of  benefit  to  him,  or 
harm  to  the  party  with  whom  he  is  dealing."  The  language  of  Ravage, 
C.  J.,  in  Farley  v.  Cleveland  (ante,  §  553),  is  more  exact  than  that  of  Chief 
Justice  Kent,  in  requiring  the  consideration  to  move  to  the  promisor;  and 
more  comprehensive,  because  it  includes  cases  where  the  consideration 
moves  from  the  original  debtor,  as  for  instance,  where  the  latter  places  a  fund 
in  the  hands  of  the  promisor,  in  consideration  of  his  promise  to  pay  the  debt. 
But  the  difference  is  not  one  of  principle,  whether  the  promise  was  made 
to  the  debtor  or  to  the  creditor;  because  in  the  former  case  it  moves 
from  the  creditor  through  the  debtor  to  the  promisor.  The  learned  Chief 
Justice  then  proceeded  to  analyze  the  previous  New  York  cases  in  detail, 
arguing  with  great  ingenuity,  although,  we  think,  not  always  successfully, 
that  in  all  of  them  where  a  verbal  promise  had  been  sustained  the  con- 
sideration moved  to  the  promisor,  and  was  a  matter  in  which  he  had  a  per- 


590  Collateral  Undertakhstgs.         [Ch.  xvi. 

concern  in  the  property,  the  release  of  which  formed  the 
consideration  of  the  promise.  On  the  other  hand,  Bacon, 
J.,  speaking  for  the  minority  of  the  court,  delivered  an 
opinion  nearly  as  elaborate,  in  favor  of  the  reversal  of  the 
judgment ;  sustaining  with  great  ingenuity  the  proposition 
advanced  by  him,  that  the  cases  in  New  York  and  Eng- 
land establish  the  rule,  that  a  promise  is  not  within  the 
statute,  "where  the  creditor,  in  consideration  of  the 
promise,  surrenders  some  pledge,  or  relinquishes  some 
lien  actually  held  by  him  and  capable  of  enforcement, 
and  by  means  of  which  the  original  debt  was  rendered 
secure,"  irrespective  of  the  question  to  whose  benefit  the 
surrender  enured.  The  principles  established  by  this  case 
were  reaffirmed  by  the  same  court  in  Becker  v.  Torrance^ 
31  New  York,  631,  A.  D.  1864 ;  Pfeiffer  v.  Adler,  37  New 
York,  164,  A.  D.  1867 ;  and  Brown  v.  Weher,  38  New 
York,  187,  A.  D.  1868 ;  all  of  which  are  cited  elsewhere 
more  at  length. 

sonal  interest  or  concern ;  and  in  all  those  where  it  was  held  that  a  verbal 
promise  was  not  valid,  the  consideration  moved  exclusively  to  the  debtor. 
The  cases  cited  and  commented  on  by  him,  which  are  relevant  to  the  pre- 
sent inquiry,  have  been  cited,  with  one  exception,  in  the  preceding  pages,  in 
connection  with  other  rules.  Those  where  the  verbal  promise  was  said  to 
have  been  sustained,  because  the  consideration  was  beneficial  to  the  prom- 
isor, are  Skelton  v.  Brewster,  8  Johnson,  293;  Gold  v.  Phillips,  10  John- 
son, 412;  Myers  v.  Morse,  15  Johnson,  425;  Olmstead  v.  Greenly,  18 
Johnson,  12 ;  Farley  v.  Cleveland,  4  Cowen,  432 ;  Chapin  v.  Merrill,  4  Wen- 
dell, 657 ;  Gardiner  v.  Hopkins,  5  Wendell,  23  ;  Ellwood  v.  Monk,  id.  235 ; 
King  V.  Despard,  id.  277  ;  and  Meech  v.  Smith,  7  Wendell,  315.  The  prin- 
ciple was  the  same,  the  learned  Chief  Justice  said,  where  a  note  or  other 
evidence  of  indebtedness  of  a  third  person,  held  by  the  promisor,  was  trans- 
ferred by  him  to  the  promisee,  with  a  guaranty  of  payment,  as  in  the  cases 
which  are  cited  in  article  i  of  chapter  xviii.  Slingerland  v.  Morse,  7  John- 
son, 463 ;  Mercein  v.  Andrus,  10  Wendell,  461 ;  Simpson  v.  Patten,  4 
Johnson,  422 ;  and  Jackson  v.  Rayner,  12  Johnson,  291,  ware  also  cited  and 
commented  on;  we  have  given  the  substance  of  most  of  his  remarks  upon 
those  cases  in  the  notes  thereto,  where  they  were  previously  cited;  but 
although  some  of  the  dicta  point  to  a  different  conclusion,  none  of  them,  he 
contended,  decides  any  thing  hostile  to  this  principle.  One  case  he  excepted 
from  these  remarks;  namely.  Fay  v.  Bell,  Hill  and  Denio,  251;  there  the 
defendant's  verbal  promise  to  pay  the  debt,  in  consideration  of  the  surrender 


Art.  II.]  Collateral  Undertakings.  591 

§  598.  The  case  of  Nelson  v.  Boynton  was  ref(?rred  to 
with  approbation  in  two  Kentucky  cases,  Jones  v.  Walker , 
13  B.  Monroe,  356,  A.  D.  1852,  and  Lieher  v.  Levy,  3 
Metcalfe,  292,  A.  D.  18G0,  in  each  of  wliich  a  verbal  prom- 
ise of  the  defendant  to  pay  a  debt  due  to  the  plaintilf  by 
a  third  person,  was  held  to  be  void  ;  the  consideration,  in 
the  former  case,  being  that  the  plaintiff  would  not  issue  an 
attachment  to  collect  it ;  and  in  the  latter,  (where  the  prom- 
ise was  to  pay  fifty  cents  on  the  dollar,)  that  the  plaintiff 
would  release  a  levy,  under  an  attachment,  upon  goods  of 
the  debtor  sufficient  in  value  to  pay  the  debt,  and  discon- 
tinue the  attachment  proceedings. 

§  599.  The  same  principles  were  also  approved  in  CorJc- 
ins  V.  Collins,  16  Michigan,  478,  A.  D.  1868.  There  the 
action  was  brought  on  a  verbal  promise  to  pay  for  board 
furnished  and  money  loaned  by  the  plaintiff  to  one  Sykes ; 

to  the  debtor  of  property  on  which  the  plaintiff  had  a  Hen  was  sustained ; 
but  the  case  was  erroneously  decided.  Yan  Slyck  v.  Pulver,  id.  47 ;  Smith 
V.  Ives,  15  Wendell,  182;  Packer  v.  Willson,  id.  343;  and  Watson  v.  Ran- 
dall, 20  Wendell,  201,  are  examples  of  cases  where  the  consideration  moved 
to  the  debtor  and  the  promise  was  therefore  held  to  be  within  the  statute. 
Barker  v.  Bucklin,  2  Denio,  45,  and  Kingsley  v.  Balcome,  4  Barbour,  131, 
contain  definitions  which  bring  the  promise  in  question  within  the  statute. 
Nelson  v.  Boynton,  44  Massachusetts  (3  Metcalf ),  396,  and  the  series  of 
English  cases  cited  in  the  foregoing  article,  were  also  examined  in  detail 
and  commented  upon;  and  with  respect  to  those  where  tlie  verbal  prom- 
ise was  sustained,  the  learned  Chief  Justice  said :  "  In  each  of  them  the 
creditor  relinquished  some  lien  or  advantage  incident  to  his  debt;  but  in 
each  of  them  whatsoever  he  relinquished  was  acquired  by  the  defendant, 
either  as  a  matter  of  personal  interest  and  concern  to  himself,  or  to 
other  parties  whom  he  represented;  and  on  that  consideration  he  promised 
to  pay.  In  none  of  them  was  any  such  doctrine  asserted,  as  the  plaintiff 
contends  for  in  this  case.  In  all  of  them  the  engagement  was  deemed 
original,  either  because  the  primary  debt  was  gone,  or  because  the  consid- 
eration moved  to  the  promisor;  and  in  some  of  them  the  decision  was 
put  on  both  these  grounds."  And  after  examining  and  discussing  Read  v. 
Nash,  1  Wilson,  305;  Goodman  v.  Chase,  1  Barnewall  and  Alderson,207; 
and  Fish  v.  Hutchinson,  2  Wilson ;  94.  the  learned  Chief  Justice  concluded 
with  the  observations,  including  his  classification,  which  have  been  copied 
at  length,  ante.  §  64. 


592  Collateral  Undertakings.         [Cli.  xvi 

and  the  consideration  of  tlie  promise  was  tlie  release  of 
certain  trunks  belonging  to  Sykes,  upon  which  the  plaint- 
iff claimed,  (and  in  the  opinion  it  was  assumed,)  that  he  had 
a  lien  for  the  payment  of  the  debt.  At  the  trial  the  judge 
directed  a  verdict  for  the  defendant ;  and  the  judgment 
thereon  was  affirmed  by  the  Supreme  Court,  on  the  ground 
that  the  property  was  released  for  the  benelit  of  Sykes. 
The  rule  is  thus  stated  by  Campbell,  J.,  delivering  the 
opinion  of  the  court :  "When,  by  the  release  of  property 
from  a  lien,  the  party  promising  to  pay  the  debt  is  enabled 
to  apply  it  to  his  own  benefit,  so  that  the  release  enures 
to  his  own  advantage ;  it  is  quite  easy  to  see  that  a  promise 
to  pay  the  debt,  in  order  to  obtain  the  release,  may  be 
properly  regarded  as  made  on  his  own  behalf,  and  not  on 
behalf  of  the  original  debtor  ;  and  any  possible  advantage 
to  the  latter  is  merely  incidental,  and  is  not  the  thing 
bargained  for.  That  promise  is  therefore,  in  no  proper 
sense,  a  promise  to  answer  for  any  thing  but  the  promisor' s 
own  responsibility,  and  need  not  be  in  writing."  "But 
where  the  entire  transaction,  both  promise  and  considera- 
tion, is  intended  and  operates  exclusively  for  the  advant- 
age and  on  behalf  of  the  debtor  whose  debt  is  guarantied, 
there  seems  to  be  no  plausible  ground  for  holding  that  the 
promise  is  any  thing  but  collateral ;  and  if  such  a  promise 
can  in  any  case  be  valid  without  a  writing,  it  must  be  valid 
in  all.  There  is  no  tangible  middle  ground.  Among 
valuable  considerations,  there  are  no  degrees  of  validity. 
They  are  all  good  or  bad  ;  but  one  valid  one  is  as  high  in 
rank  as  another." 

§  600.  It  was  held  in  the  very  recent  case  of  Landis  v. 
Moyer,  69  Pennsylvania,  95,  A.  D.  1868,  that  the  rule  is 
satisfied  if  the  lien  or  charge  upon  the  defendant' s  prop- 
erty was  only  inchoate,  provided  it  could  have  been  made 
perfect ;  and  at  the  same  time  the  court  assigned  a  reason 
for  the  decision,  corresponding  very  closely  with  the  Eng- 
lish doctrine  in  this  class  of  cases.  This  action  was 
brought  to  recover  the  value  of  a  quantity  of  lumber,  used 
in  constructing  a  house  for  the  defendant.     It  appeared 


Art.  II.]  Collateral  Undertakings.  693 

at  the  trial  tliat  tli(^  defendant,  his  brotlier,  and  another 
person,  Imd  severally  entered  into  contmcts  with  one 
"Wcrtz  ;  wliereby  AVr-rtz  was  to  erc^ct  a  hous<?  for  each  of 
them,  he  famishing  all  the  materials.  The  ])laiiititf  had 
supplied  lumber  for  all  the  houses,  and  had  charged  it  to 
Wertz,  without  designating  for  which  house  each  parcel 
of  lumber  had  been  supplied.  Wertz  became  unable  to 
pay;  and  the  evidence  tended  to  show,  tluit  thweupon  the 
defendant  and  his  brother  agreed  with  the  plaintiff  upon 
the  value  of  the  lumber,  which  had  gone  into  each  of  the 
three  houses ;  and  each  of  them  agiec^d  to  pay  his  share, 
provided  the  third  contractor  would  pay  the  residue  of 
the  account ;  and  that  the  latter  had  sul)sequently  done 
80.  The  judge  left  it  to  the  jury  to  determine  whether 
the  lumber  was  furnished  upon  the  credit  of  Wertz  alone, 
or  on  the  credit  of  the  defendant,  or  his  building  ;  instruct- 
ing them  that  the  building,  if  the  lumber  was  furnished  on 
its  credit,  would  have  been  subject  to  a  lien  therefor  (under 
the  mechanic' s  lien  law) ;  and  that  although  no  lien  had 
been  entered,  the  promise  would  be  to  pay  the  defendant' s 
own  debt,  and  in  ease  of  his  own  property,  and  not  the 
debt  of  Wertz.  The  jury  having  found  a  verdict  for  the 
plaintiff,  a  judgment  thereon  was  affirmed.  Sharswood, 
J.,  delivering  the  opinion  of  the  court,  said,  in  answer  to 
the  objection  that  the  promise  was  within  the  statute  of 
fiuuds:  "It  was  the  debt  of  the  defendant's  own  build- 
ing, the  payment  of  which  could  be  legally  enforced 
against  it ;  though  it  may  not  have  been  personally  his 
debt,  his  property  was  answerable  for  it,  and  his  engage- 
ment to  pay  was  in  relief  of  his  property." 

§  601.  Sometimes  this  principle  will  save  a  verbal  prom- 
ise to  pay  a  debt  du(^  by  another,  when  the  surrender  of 
the  lien  was  only  constructive.  That  seems  to  have  been 
the  ground  of  a  recent  decision  in  the  New  York  Common 
Pleas,  Benedict  v.  Dunning ^  1  Daly,  241,  A.  D.  1802. 
There  one  Schoonmaker  had  employed  the  plaintiffs  to 
make  searches  respecting  the  title  to  certain  property,  with 
the  view  of  borrowing  a  sum  of  money  ui)on  a  mortgage 
75 


694  Collateral  Undertakings.         [Ch.  xvi. 

on  the  property  ;  the  plaintiffs  also  agreeing  to  nse  their 
influence  to  procure  for  him  the  said  loan,  which,  it  is  to 
be  plainly  inferred,  they  controlled  as  attorneys  for  the 
proposed  lender.  The  plaintiff's  made  the  necessary 
searches,  but  Schoonmaker  was  unable  to  fulfil  the  agree- 
ment on  his  part  for  the  loan.  The  defendant  held  a  third 
mortgage  upon  the  same  property,  and  a  decree  had  been 
made  in  an  action  to  foreclose  the  second  mortgage.  The 
defendant  wishing  to  procure  the  same  money  which 
Schoonmaker  proposed  to  borrow,  for  the  purpose  of  pay- 
ing off"  the  two  prior  mortgages,  it  was  thereupon  verb- 
ally agreed  between  him  and  the  plaintiff's,  that  they  would 
cause  that  money  to  be  loaned  to  him  upon  the  property, 
and  would  make  a  further  search  as  to  the  foreclosure 
proceedings,  and  cause  the  money  to  be  kept  for  him, 
until  it  was  ascertained  whether  he  would  become  the  pur- 
chaser upon  the  sale  under  the  decree  ;  and  on  the  other 
hand,  he  agreed  to  take  the  loan,  and  pay  them  for 
their  services  and  expenses  in  making  all  the  searches, 
provided  he  became  the  purchaser  upon  the  sale.  The 
searches  were  completed,  and  the  defendant  became  the 
purchaser  ;  but  he  refused  to  take  the  loan  or  to  pay  the 
plaintiff's.  A  judgment  in  favor  of  the  plaintiff's  was 
affirmed  upon  appeal.  Brady,  J.,  delivering  the  opinion 
of  the  court,  said  that  Schoonmaker  was  liable  to  tlie 
plaintiff's,  but  the  defendant  assumed  the  responsibility, 
in  consideration  of  the  transfer  to  him  of  the  subject  mat- 
ter of  the  liability ;  and  that  he  was  to  receive  the  benefit 
of  the  services  rendered  and  expenses  incurred  for  Schoon- 
maker. The  loan  was  the  consideration  of  both  prom- 
ises. The  defendant's  promise,  added  the  learned  judge, 
' '  was  a  new  promise,  to  the  effect  that  if  the  plaintiffs 
would  transfer  the  loan  to  him,  he  would  pay  them  the 
same  charge,  that  they  would  receive  from  Schoonmaker, 
had  the  loan  been  made  to  him."  The  defendant  also 
agreed  to  pay  the  charges  for  the  additional  services 
necessary  to  make  the  transfer  in  due  form.  ' '  The  money 
was  ready,"  continued  the  learned  judge,  "and  was  kept 
in  abeyance,  awaiting  the  convenience  of  the  defendant 


Alt.  II. ]  Collateral  Undertakings.  695 

and  subject  to  liis  order.  This  was  a  further  consid- 
ciution  for  the  promise."  The  learned  judge  therefore 
thouglit  tliat  this  case  was  within  the  principles  laid  down 
m  JMallory  \.  (jlUctt.{f) 

%  G()2.  The  question,  wliether  the  cotemporaneous  dis- 
charge of  th(^  lien  must  necessarily  form  the  consideration 
of  i\\e  promise,  in  order  to  bring  the  (;ase  witliin  the  rule, 
was  considered,  although  under  circumstances  unfavorable 
to  its  definite  settlement,  in  Phuiimer  v.  Lyman,  40  Maine, 
229,  A.  J).  1860.  There  tlie  plaintitfs  liad  a  iieii,  und(^r  tlie 
State  law,  on  a  vessel  which  one  Spear  had  built,  for 
materials  furnished  towards  lier  construction  ;  and  the 
defendants,  who  had  made  large  advanc(^s  to  Spear,  had 
or  claimed  to  have  the  legal  title  to  the  vessel,  by  transfer 
from  Spear.  Shortly  before  the  plaintiffs'  lien  would  ex- 
pire, one  of  the  defendants  said  to  one  of  the  plaintiffs, 
that  i\\i}\  did  not  wish  the  vessel  to  be  attached  under  the 
lien;  and  if  the  plaintiffs  would  obtain  Spear's  order 
uj)on  them  for  the  amount  of  this  claim,  they  would  ac 
cept  it.     The  plaintiffs  tliereuj)on  procured  such  an  order 

(/)  If  tliis  decision  can  be  sustained  under  the  rule  mentioned  by  the 
court,  it  would  seem  that  Schoonmaker  must  have  been  a  consenting  party 
to  the  arrangement;  and  that  the  true  ground  is  that  the  plaintifiV  agree- 
ment was  in  legal  effect  a  promise,  with  Schoonmaker's  consent,  to  hold  the 
searches  and  official  certificates  of  title  as  the  attorneys  for  the  defendant, 
surrendering  to  him  their  lien  thereupon  for  the  amount  of  their  bill.  Un- 
less Schoonmaker  participated  in  the  arrangement,  it  is  difficult  to  see  what 
connection  there  was  between  the  defendant's  cimlract  and  his  liabilit}'.  On 
the  contrary  it  woul  i  seem  that  this  was  an  independent  agreement,  to  pay 
a  certain  sum  for  services  to  be  rendered  to  the  defendant  himself,  which 
the  plaintiffs  were  none  tl;e  less  qualified  to  perform  because  they  had  in- 
vestigated the  same  subject  for  another  person.  The  iiniouiit  to  be  paid  by 
the  defendant  was  fixed  by  reference  to  the  sum  due  from  Schoonmaker; 
doubtless  on  account  of  the  improbability  that  the  plainlifls  could  collect  any 
thing  from  the  latter,  whose  property  had  been  swept  awny  by  the  fore- 
closure. Still,  except  upon  the  hypothesis  that  he  was  a  party  to  the  new 
transaction,  the  plaintifls  could  have  recovered  against  him,  after  fulfilment 
of  the  defendant's  promise;  and  on  the  other  hand,  he  would  not  be  liable 
over  to  the  defendant  for  whatever  the  latter  might  pay  in  fulfilment 
thereof. 


696  Collateral  Undertakings.        [Ch.  xvi. 

and  gave  Spear  a  receipt  in  full ;  but  the  defendants  re- 
fused to  accept  the  order.  There  were  two  days  then 
remaining,  before  the  lien  would  expire,  and  the  plaintiffs 
at  once  took  out  process  to  enforce  it ;  but  before  they 
could  serve  the  process,  the  vessel  had  left  port.  In  an 
action  upon  this  promise,  the  evidence  was  reported  to 
the  court  for  an  opinion ;  and  after  argument,  it  was 
adjudged  that  the  plaintiffs  be  nonsuited.  The  opinion, 
delivered  by  Tenney,  C.  J.,  placed  the  decision  upon  the 
ground  of  want  of  consideration,  as  well  as  because  the 
promise  was  within  the  statute ;  there  being,  he  said,  no 
proof  that  the  discliarge  of  the  lien  was  the  consideration 
tion  of  the  defendant' s  promise ;  or  that  the  plaintiffs  prom- 
ised to  discharge  it,  or  to  give  Spear  a  receipt.  And  he 
added  that  the  plaintiffs  were  not  injured  by  the  refusal  to 
accept  the  order ;  as  their  rights  and  remedies  were  pre- 
cisely the  same  as  if  the  order  had  never  been  given. 

§  603.  It  is  believed  that  the  general  doctrine  of  the 
foregoing  cases  may  now  be  regarded  as  an  established 
rule  of  American  jurisprudence.  In  some  of  the  States 
there  are  decisions,  which  it  may  be  difficult  to  overrule, 
in  favor  of  the  doctrine  that  the  surrender  of  a  lien  or 
other  available  security  for  the  payment  of  a  debt,  will 
take  a  promise  out  of  the  statute,  without  regard  to  the 
person  to  whom  it  was  surrendered  ;  but  this  proposition  is 
intrinsically  so  unsound,  and  the  stream  of  authority  is 
now  running  so  uninterruptedly  the  other  way,  that 
doubtless,  when  the  necessity  arises,  the  courts  of  those 
States  will  follow  the  example  of  the  highest  court  of  New 
York,  and  by  sweeping  away  precedents  which  cannot 
be  reconciled  with  the  foregoing  rule,  render  the  American 
decisions  uniform  on  this  point,  {g) 

(g)  The  case  of  Allen  v.  Thompson,  10  New  Hampshire,  32,  decided 
A.  D.  1838,  is  one  of  the  precedents  referred  to.  There  the  declaration 
counted  upon  a  promise  of  the  defendant,  made  in  consideration  of  the 
delivery  to  one  Bryant,  of  the  account  book  of  one  Richardson,  who  had 
delivered  the  same  to  the  plaintiff  as  a  pledge,  to  secure  the  payment  of  a 
debt  owing  by   Richardson ;  the  averment  being  that  it  was  delivered  to 


Art.  II.]  Collateral  Undertakings.  597 

^  C()4,  No  caso  appoars  to  liavo.  yot  arison,  npccssarily 
involving  an  answer  to  the  qu<?stion,  wliether  a  coti^mpo- 
raneous  surrender  of  tlie  lien  is  indispensable  to  the 
validity  of  the  verbal  promise.     But  although  the  Chief 

Bryant  "to  collect  the  amount  due  on  the  book;  "  and  the  promise  was  that 
the  defondiint  would  pay  the  debt  due  to  the  plaintiflT,  provided  Bryant 
should  not  collect  enough  for  that  purpose.  At  the  trial  thcplaintilT  introduced 
evidence  tending  to  prove  a  verbal  promise,  as  alleged  in  the  declaration; 
and  the  judge  ruled  as  matter  of  law  that  it  wa^s  not  within  the  statute,  and 
the  plaintiff  had  a  verdict.  On  a  motion  for  a  new  trial  the  ruling  was  .sus- 
tained ;  the  court  remarking  that  it  did  not  appear  why  the  defendant  wished 
the  book  to  be  delivered  to  Bryant,  whether  to  benefit  Richardson,  Bryant, 
or  himself,  but  that  was  unimportant.  The  plaintiff  parted  with  a  book 
which  he  possessed,  and  from  which  he  had  a  right  to  pay  himself,  and  tii« 
consideration  of  the  promise  was  the  surrender  of  the  book,and  not  the  debt  due 
by  Richardson.  This  distinct  consideration  was  one  which  passed  between 
the  parties  to  the  new  contract,  as  the  delivery  of  the  book  to  Bryant  was 
in  legal  effect  the  same  as  a  delivery  to  the  defendant,  and  it  was  sufficient 
to  take  the  case  out  of  the  statute.  In  French  v.  Thompson,  6  Vermont,  54, 
A.  D.  1834,  the  court  seem  to  have  regarded  the  mere  surrender  of  a  security 
as  sufficient  to  take  out  of  the  statute  a  promise  to  pay  the  debt ;  but  in  fact 
the  surrender  was  made  to  the  defendant,  although  he  received  the  property 
surrendered  in  a  representative  capacity ;  namely,  as  guardian  for  an  infant, 
whose  estate  was  primarily  liable.  In  South  Carolina  a  verbal  promise  to 
pay  the  tavern  bill  of  a  third  person,  in  consideration  of  the  surrender  to 
him  of  his  trunk,  upon  which  the  landlord  had  a  lien  for  his  bill,  was  sustained 
on  the  ground  that  where  "  a  complete  and  enforceable  lien  on  the  property  of 
the  debtor,"  is  given  up,  in  consideration  of  the  promise,  it  is  not  within  the 
statute.  Dunlap  v.  Thorno,  1  Richardson,  213,  A.  D.  1845.  However  there 
was  some  question  whether  the  plaintiff  had  not  discharged  the  original 
debtor;  and  the  prevailing  opinion  refers  to  that  feature  of  the  case,  as  being 
important,  although  it  is  not  assigned  as  a  separate  reason  for  the  decision. 
The  cases  cited  from  the  South  Carolina  reports  were  Jones  v.  Ballard,  2  Mills, 
113;  Adkinson  v.  Barfield,  1  McCord,  575;  Rogers  v.  Collier,  2  Bailey,  581; 
Barnstinc  v.  Eggart,  3  McCord,  1G2 ;  Boyce  v.  Owens,  2  McCord,  208; 
Corbett  V.  Cochran.  3  Hill,  41.  To  which  might  be  added  Siau  ads.  Pijott, 
1  Nott  &  McCord,  124.  And  it  was  asserted  that  this  was  the  rule  of  law, 
nithough  it  was  indefensible  upon  principle,  in  Durham  v.  Arledge,  1  Strob- 
hart,  5,  A.  D.  184R,  where,  however,  there  was  no  occasion  to  ajiply  the 
rule,  as  the  promise  was  void  upon  every  theory,  having  been  made  in  con- 
sideration of  forbearance  to  issue  an  execution.  See  also  Hindman  v. 
Langford,  3  Strobhart,  207,  A.  D.  1848.  Most  of  tho.^e  cases  arc  cited  in 
previous  pages  of  this  volume.     It  is  believed  that  tlie  only  case,  during  the 


698  Collateral  Undeetakings.         [Cli.  xvi. 

Justice  in  delivering  liis  opinion  in  Fitzgerald  v,  Dress- 
ler,{  h )  treated  tli6  question,  as  if  it  was  a  matter  of  course 
that  tlie  surrender  would  form  the  consideration  of  the 
promise,  it  is  quite  clear  that  he  did  not  intend  to  make  any 
ruling,  to  the  effect  that  this  was  an  indispensable  requisite. 
On  the  contrary,  he  said  several  times,  that  the  previous 
liability  of  the  defendant's  property  for  the  debt,  was  the 
true  reason  why  the  statute  did  not  apply.  And  the 
expressions  containing  a  similar  implication,  which  are 
found  in  the  American  cases,  may  perhaps  be  regarded  as 
dicta,  rather  than  adjudications.  The  distinction  is  of 
little  practical  importance  in  this  class  of  cases ;  but  it 
has  an  important  bearing  upon  several  questions,  con- 
nected with  the  eftect  of  the  consideration  upon  the  applica- 
tion of  the  statute ;  and  especially  upon  the  principal 
question  to  be  discussed  in  the  next  chapter.  If,  as 
the  English  authorities  apparently  hold,  and  as  correct 
principles  seem  to  demonstrate,  the  true  reason  why  the 
statute  does  not  apply,  is  that  the  debt  of  the  promisor' s 
property  is  practically  his  own  debt,  it  is  evident  that  his 
motive  in  assuming  an  absolute  liability  to  pay  it  is  of 
no  imj)ortance. 

last  twenty  years,  where  the  doctrine  of  Nelson  v.  Boynton,  was  not  fol- 
lowed, is  Spooner  v.  Dunn,  7  Indiana,  81,  decided  A.  D.  1855;  where  the 
court  appears  to  have  been  unconscious  of  that  decision,  or  of  the  principle 
which  it  estabhshes.  There  it  was  held  by  the  Supreme  Court,  on  appeal, 
that  the  relinquishment  of  a  levy  made  under  an  execution,  upon  property 
sufficient  in  amount  to  satisfy  it,  would  sustain  the  defendant's  verbal  prom- 
ise to  pay  the  debt,  although  the  defendant  personally  derived  no  benefit 
from  the  transaction.  The  decision  was  placed  entirely  upon  the  ground 
that  "  where  a  specific  lien  or  substantial  benefit  is  surrendered,  upon  the 
express  promise  of  a  third  person  to  pay  a  debt,  it  is  an  original  under- 
taking, and  not  within  the  statute."  But  it  is  stated  in  the  report  that  the 
promise  was  in  consideration  that  the  plaintiff  "would  release  his  levy  and 
return  the  executions,^'  and  that  he  did  so ;  from  which  it  may  be  inferred 
that  the  debt  was  discharged,  in  consideration  of  the  defendant's  promise. 
(A)  Ante  §590,  591. 


CHAPTER    SEVENTEENTH. 

DEFENCE  OF  THE  REJECTION,  AS  UNSOUND,  OF  ALL 
LEOAL  PKOrOSITIONS  DEPENDENT  UPON  THE  CASES 
CITED  IN  THE  LAST  TWO  CHAPTERS,  EXCEPT  THOSE 
EMBODIED   IN   THE  SEVENTH   AND   EIGHTH   RULES. 


§  605.  Having  thus  defined  the  rule  which  governs  the 
cases,  where  the  debt,  for  which  the  promisor  undertook 
to  answer,  was  secured  by  a  lien  upon  property,  existing 
in  favor  of  the  promisee  ;  and  ascertained,  as  far  as  tlie 
present  state  of  the  authorities  permits,  the  principle  upon 
which  it  depends ;  we  have  now  to  defend  the  conclusions 
wliich  we  have  adopted,  in  treating  these  cases,  and  those 
governed  by  tlie  seventh  rule,  as  two  distinct  and  inde- 
pendent classes;  and  in  rejecting  various  other  legal 
propositions  which  have  the  sanction  of  the  most  respecta- 
ble authorities.  In  so  doing,  we  shall  be  compelled  partly 
to  retrace  our  steps,  and  again  to  travel  over  some  of  the 
ground,  covered  by  the  discussion  contained  in  the  two 
foregoing  chapters. 

ARTICLE  I. 

Examination  of  the  prevalent  theories  derived  from  Williams  v.  Leper,  and  kindred  cases. 

§  606.  Tlie  cases  collected  in  the  first  article  of  the 
sixteenth  chapter,  se(»ni  to  b(;  geiuvniUy  regarded  as  belong- 
ing to  one  class  ;  although  the  connection  of  some  of  thnn 
with  the  rest  is  not  very  apparent ;  and  with  the  exception 
of  the  last  two  or  three,  the  principles  which  controlled 
the  decision  of  those,  where  the  promise  was  exc^ludcd 
from  the  opci-ition  of  the  statute,  are  very  obscure.  They 
have  formed  the  subject  of  a  discussion,  which  has  lasted 
for  many  years ;  and,  so  far  from  having  resulted  in  any 
settled  conclusion,  it  is  even  now  at  its  height.     There  ig 


600  COLLATEIJAL   UnDEKTAKINGS.  [Ch,  XVII. 

no  prospect  of  it8  ever  being  brought  to  a  satisfactory 
termination,  except  by  its  abandonment ;  probably  because 
all  tlie  remarks  of  the  judges,  and  perhaps  all  the  decis- 
ions, are  not  capable  of  being  fully  reconciled  with  each 
other,  or  with  the  true  construction  of  the  statute.  It  is 
evident  that  the  principle  that  the  promise  is  not  within 
the  statute,  when  the  property  of  the  promisor  was  already 
liable  for  the  debt  assumed  by  him,  affords  but  a  very 
imperfect  explanation  of  many  of  the  cases ;  and  the 
subject  of  the  controversy  is  to  ascertain,  what  additional 
principles,  if  any,  are  to  be  derived  from  them.  We 
append  in  a  note,  extracts  from  the  works  of  some  of  the 
leading  English  and  American  elementary  writers,  which 
will  show  how  great  a  stumblin-^  block,  in  that  respect, 
they  have  been  found  to  be,  by  the  commentators  in  both 
countries,  (a) 

(a)  Mr.  Koberts  in  his  Treatise  on  the  Statute  of  Frauds,  page  232,  lays 
down  the  rule,  as  derived  from  such  of  the  cases  as  had  been  decided  at  the 
time  of  the  publication  of  his  work,  as  follows:  "It  is  to  be  observod,  in 
regard  to  these  promises  founded  on  the  liability  of  another  person,  that 
to  constitute  them  such  as  are  necessary  by  virtue  of  the  statute  of  frauds, 
to  be  committed  in  writing,  the  consider.ation  should  appear  to  have  an 
immediate  respect  to  the  liability  of  the  party  promised  for.  If  it  spring  out  of 
any  new  transaction,  or  move  to  the  party  promising  upon  some  fresh  and  sub- 
stantive ground  of  a  personal  concern  to  himself,  the  statute  of  frauds  does 
not  attach  upon  such  promise,  but  the  same  maybe  good,  if  the  consideration 
be  sufficient,  although  existing  in  parol  only."  It  will  be  noticed,  that  if  the 
word  "and  "  had  been  used  in  the  place  of  "or,"  in  the  second  sentence,  the 
principle  asserted  would  have  been  very  nearly  equivalent  to  the  doctrine, 
that  the  promise  is  not  within  the  statute,  when  the  leading  object  of  the 
promisor  was  to  benefit  himself,  which  has  obtained  an  extensive  recogni- 
tion in  the  United  States.  Other  English  writers  use  nearly  equivalent 
expressions;  and  some  fall  into  the  error  of  supposing  that  the  ground  of 
such  of  the  decisions  as  sustained  the  verbal  promise,  where  the  considera- 
tion was  the  surrender  of  a  lien  in  favor  of  the  promisee,  turned  upon  the 
nature  of  the  consideration,  instead  of  the  relation  of  the  promisor  to  the 
property  to  which  the  lien  attached.  Thus  in  Burge  on  Suretyship,  p.  26, 
it  is  said:  "The  debt  of  another  may  have  been  the  original  cause  of  the 
promise,  yet  if  the  person  to  whom  it  is  given  relinquish  some  right  or 
■advantage  which  he  possessed,  and  which  might  have  enabled  him  to  obtain 
satisfaction  of  his  debt,  the  promise  by  a  third  party  to  pay  the  debt,  in 


Art.  I.]  Collateral  Undertakings.  GOl 

§  C07.  Witli  respect  to  the  various  legal  theories,  which 
the  courts  and  text  writers  in  the  United  States  liave  de- 
rived from  these  cases,  through  subsequent  adjudications  in 
this  countr}^  they  seem  at  the  present  time  to  be  embodied 
in  f(mr  distinct  and  conilicting  propositions,  each  of  which 
finds  able  and  distinguished  advocates.  These  are : 
First.  Tliat  wlienever  a  verbal  ])romise  to  ]>ay  the  debt  of 
a  third  person  has  been  taken  out  of  the  statute,  upon  the 
authority  of  the  cases  of  this  series,  the  true  gi-ound  of  tlie 
decision  was  that  tlie  leading  object  of  the  ])romisor  was 
to  benefit  himself,  and  the  debtor's  discharge  resulted  only 
incidentally  from  the  fulfilment  of  the  promise.  8ecoiul1t/. 
That  wlienever  such  a  promise  was  sustained,  the  decision 
proceeded  upon  the  ground  that  it  Avas  to  be  ful tilled,  out 
of  a  fund,  proceeding  either  from  the  creditor  or  from  the 
debtor.     Thirdly.  That  some  of  the  decisions,  sustaining 

consideration  of  such  relinquishment,  is  an  original  promise."  And  appar- 
ently Mr.  Theobald,  in  his  Treatise  on  Principal  and  Surety,  pi.  58,  agree3 
with  this  statement  of  the  rule.  In  Mr.  Fell's  work  on  Guaranty  and 
Suretyship,  p.  16,  the  principle  of  these  oases  is  stated  to  the  same  effect,  as 
follows:  "  A  party  may  make  himself  liable  to  the  same  demand  to  which 
another  person  is  already  subject,  without  a  note  in  writing,  in  many  cases; 
provided  there  is  a  new  and  adequate  consideration  arising  between  him 
and  the  original  creditor."  Then  after  citing  Williams  v.  Leper,  Castling  v. 
Aubert,  and  Love  s  case,  to  show  what  is  a  new  and  adequate  consideration, 
it  is  added,  on  p.  18:  "In  these  three  cases  the  plaintiff,  creditor,  had  pos- 
session of  the  property  of  the  debtor,  and  a  lien  upon  it,  which  he  was 
induced  to  give  up  by  the  promise  of  the  defendant."  The  other  cases  do 
not  appear  to  have  been  cited.  And  in  Leigh's  Nisi  Prius,  1031,  the  result 
of  the  cases  is  thus  summed  up :  "  Although  the  deci.<5ions  on  this  subject  can 
scarcely  be  deemed  conflicting,  yet  it  is  difficult  to  lay  down  any  rule  with 
which  all  the  authorities  cat:  be  reconciled.  The  inference,  however,  from 
the  preceding  decisions  is,  that  though  the  debt  of  a  third  party  be  the  sub- 
ject matter  of  a  promise,  yet  if  the  promise  be  founded  on  a  new  and  dis- 
tinct consideration  co-extensive  therewith,  and  moving,  not  to  the  third 
party,  but  to  the  person  who  makes  the  promise ;  or  if  the  third  party  be 
not  liable  to  be  sued  on  the  debt,  when  the  promi.<*c  is  made  it  is  not  within 
the  statute."  Mr.  Addison  in  his  Treati."*e  on  Contracts,  104,  is  even  more 
inexact.  He  says  :  "  If  the  plaintiff,  for  example,  has  a  lien  upon  the  goods 
and  chattels  of  his  debtor  in  his  possession,  or  if  he  holds  securities  for  the 
payment  of  his  debt,  and  is  induced  either  to  give  up  his  lien  upon  the  goods 
76 


602  Collateral  Undertakings.       [Ch.  xvii. 

the  verbal  promise,  rested  upon  the  first  ground,  and  some 
upon  the  second ;  so  that  both  of  these  propositions  ex- 


or  to  part  with  his  securities,  upon  the  faith  of  a  promise,  made  by  the  de- 
fendant, to  pay  the  amount  of  the  plaintiff's  claim  thereon  ;  the  promise  so 
made  is  not  within  the  mischief  intended  to  be  provided  against  by  the  stat- 
ute of  frauds,  although  the  amount  promised  to  be  paid,  as  the  consideration 
or  inducement,  for  the  abandonment  of  the  lien  or  the  surrender  of  the  secur- 
ities, may  be  the  subsisting  debt  of  a  third  party,  due  to  the  plaintiff;  and 
the  performance  of  the  promise  may  have  the  effect  of  discharging  that 
debt."  Although  this  proposition  at  one  time  received  considerable  coun- 
tenance in  the  American  courts,  it  cannot  be  sustained  on  any  correct  view 
of  the  English  cases  ;  but  it  has  been  retained  in  the  subsequent  editions  of 
Mr.  Addison's  book,  and  is  to  be  found  again  in  the  sixth,  published  in  1869, 
on  page  60.  But  on  the  preceding  page  the  editor,  Mr.  Cave,  without  citing 
any  authorities,  lays  down  a  general  rule  in  these  words:  "Where  the  de- 
fendant, in  order  to  get  rid  of  an  incumbrance  on  his  own  property,  or  to 
obtain  some  direct  personal  advantage  to  himself,  promises  to  pay  the  debt 
of  another,  the  promise  is  not  within  the  statute."  In  the  third  (English) 
edition  of  Chitty  on  Contracts,  p.  511,  the  cases  which  had  been  decided  up 
to  that  time  are  cited  with  the  following  remarks:  "  Although  the  debt  of 
another  form  the  subject  matter  of  the  defendant's  undertaking,  still,  if  he 
promised  to  pay  the  debt  upon  some  new  consideration  raised  by  himself, 
and  the  consideration  be  the  creditor's  resignation  of  a  charge  or  lien  on  goods 
which  afforded  him  a  remedy  or  fund  to  enforce  payment,  the  case  does  not 
fall  within  the  statute."  The  word  "raised  "  is  evidently  a  printer's  blunder 
for  "  received  ;  "  correcting  this  error,  the  sentence  expresses  with  tolerable 
accuracy  the  rule  to  be  derived  from  the  lien  cases.  But  the  blunder  is  con- 
tinued in  all  the  later  editions,  and  in  the  eighth,  published  in  1868,  on  page 
480,  this  remark  is  prefaced  with  :  "  It  has  also  been  said  that,"  and  after  citing 
Williams  v.  Leper,  Bampton  v.  Paulin,  Edwards  v.  Kellj^,  Barrell  v.  Trussell, 
Castling  v.  Aubert,  Thomas  v.  Williams,  and  Houlditch  v.  Milne,  the  editor 
condemns  all  those  of  the  series,  in  which  a  verbal  promise  was  sustained,  in 
the  following  sweeping  terms:  "But,  as  has  already  been  observed,  the  real 
question  in  such  cases  would  now  appear  to  be,  not  whether  the  promise 
of  the  guarantor  was  given  on  a  new  consideration,  but  whether  by  accept- 
ing his  liability,  the  party  to  whom  the  promise  was  given  has  relinquished 
his  claim  on  the  party  originally  liable.  And  accordingly  it  may  be  ques- 
tioned, whether  any  case  similar  to  those  above  cited,  would  now  be  held  not 
to  be  within  the  statute;  unless  it  appeared  that  the  promisee,  by  giving  up 
his  lien  or  charge  on  the  property  of  the  party  originally  liable,  had  left 
himself  wholly  without  a  remedy  against  him.''  And  in  this  edition,  Fitz- 
gerald V.  Dressier,  Gull  v.  Lindsay,  and  other  modern  ca.^es  are  cited  on  page 
476,  in  connection  with  a  quotation  from  the  end  of  liic  note  in  1  Williams's 


Art.  I.]     Collateral  Undertakixgs.        G03 

press  correct  rules  of  law.      Fourtltly.  That  in  this  series 
there  are  two  distinct  classes  of  cases,  practically  if  uot 


Saunders,  wliich  erroneously  omits  (he  important  words,  "  or  liis  property." 
Mr.  John  William  Smith,  in  his  Lectures  on  the  Law  of  Contracts,  pp.  46 
and  47,  ajjparently  agrees  with  tiie  modern  editor  of  Chitty  in  the  opinion 
that  the  cases  are  nolongrer  law,  for  he  does  not  cite  or  refer  to  them,  but 
says:  "It  was  at  one  time  thought  that  a  verbal  promise,  even  to  answer  lor 
the  debts  of  another,  for  which  that  other  remained  liable,  might  be  available, 
if  founded  on  an  entirely  new  consideration,  conferring  a  distinct  benefit 
upon  the  party  making  such  promise.  This  idea  is  however  confuted  by 
Serjeant  Williams  in  an  elaborate  note  to  the  case  of  Forth  v.  Stanton,  which 
I  have  already  cited ;  and  the  rule  there  laid  down  by  him,  and  which  ha.s 
ever  since  been  approved  of,  is,  that  the  only  test  and  criterion,  by  which  to 
determine  whether  the  promise  needs  to  be  in  writing,  is  the  question 
whether  it  is  or  is  not  a  promise  to  answer  for  a  debt,  default  or  miscar- 
riage of  another,  for  which  that  other  continues  liable.  If  it  be  so,  it  nuist 
be  reduced  to  writing ;  nor  can  the  consideration  in  any  case  be  of  import- 
ance, except  in  such  cases  as  Goodman  v.  Cliase,  in  which  the  consideration 
to  the  person  giving  the  promise,  is  something  which  extinguishes  the  orig- 
inal debtor's  liability.  You  will  see  Serjeant  Williams's  criterion  approved 
of  in  Green  v.  Cresswell,  10  A.  &:  E.,  453,  and  Tomlinson  v.  Gell,  6  A.  &  E., 
564."  However,  the  English  editor  of  this  work  adds  a  note,  in  which  lie 
makes  the  very  proper  criticism  on  this  passage,  that  the  note  to  Williams's 
Saunders  requires  an  absence  of  liability  on  the  part  of  the  defendant's 
property,  as  well  as  an  absence  of  personal  liability,  except  such  as  arises 
from  the  promise,  in  order  to  bring  the  promise  within  the  statute;  and  that 
the  cases  where  the  guarantor  has  an  interest  in  his  promise,  have  given 
rise  to  some  conflict  of  opinion,  which  is  solved  by  that  observation.  That 
part  of  the  original  note  to  Forth  v.  Stanton,  1  Williams's  Saunders,  211, 
which  bears  upon  this  question,  is  as  follows :  "  But  where  the  promise  is 
founded  upon  some  new  consideration,  sufficient  in  law  to  support  it,  and  is 
not  merely  for  the  debt,  etc.,  of  another,  such  an  undertaking,  though  in 
effect  it  be  to  answer  for  another  person,  is  considered  as  an  original  prom- 
ise, and  not  wiihin  the  statute ;  as  where  A  promises  B  to  pay  him  a  sum 
of  money,  in  case  he  will  withdraw  his  record  in  an  action  of  a.ssault  and 
battery,"  citing  Read  v.  Nash  (ante,  §  130),  Stephens  v.  Squire  (ante,  §  484), 
and  Williani.s  v.  Leper  (ante,  §  577).  But  in  the  additional  notes  of  Mr. 
Justice  Patteson  and  Mr.  Justice  Williams,  in  tlic  fifth  and  sixlli  editions, 
several  of  the  leading  cases  on  this  subject  are  ci^ed  and  commented  upon  ; 
and  it  is  said  that  in  Williams  v.  Leper  the  true  ground  of  the  decision  was 
that  the  defendant  was  the  owner  of  the  goods;  that  in  Houlditcii  v.  ^filne 
(ante,  §  579),  the  circumstances  showed  that  all  the  credit  for  the  repairs 
was  given  to  the  defendant,  and  the  real  owner  of  the  carriages  was  not 


604  Collateral  Undertakings.        [Ch.  xvii. 

expressly  recognized,  and  only  two,  wherein  the  statute 
does  not  apply;  the  one  being  where  the  promise  was 


liable ;  and  that  in  Castling  v.  Aubert  (ante,  §  580),  and  Anstey  v.  Harden 
(ante,  §  118),  there  was  a  purchase  of  an  interest.  The  note  concludes  aa 
follows:  "There  is  considerable  difficulty  in  the  subject,  occasioned  per- 
haps by  unguarded  expressions  in  the  reports  of  the  different  cases;  but 
the  fair  result  seems  to  be,  that  the  question  whether  each  particular  case 
comes  within  the  statute  or  not,  depends,  not  on  the  consideration  for  the 
promise,  but  on  the  fact  of  the  original  party  remaining  liable,  coupled  with 
the  absence  of  any  liability  on  the  part  of  the  defendant  or  his  property, 
except  such  as  arises  from  his  expiess  promise."  This  conclusion  is  now 
generally  recognized  in  England  as  containing  the  correct  rule.  (See  Fitz- 
gerald V,  Dressier,  ante,  §  590).  In  the  thirteenth  English  edition  (A.  D. 
1869)  of  Selwyn's  Nisi  Prius,  edited  by  Messrs  Keane  and  Smith,  volume  2, 
page  773,  the  editors  lay  down  with  correctness  the  principle  to  be  deduced 
from  the  English  lien  cases;  but  it  may  be  questioned  whether  they  give 
the  correct  reason  therefor.  The  passage  is  as  follows:  '"There  is,  however, 
a  remarkable  class  of  cases,  in  which  a  promise  to  answer  for  the  debt  of 
another,  having  been  coupled  with  the  purchase  by  the  guarantor  of  an  in- 
terest of  some  kind,  or  the  surrender  in  his  favor  of  a  right,  such  as  that  of 
distress,  has  been  held  not  to  be  within  the  statute ;  and  in  these  cases  it  is 
not  essential  that  the  original  debt  should  be  extinguished.  The  principle 
on  which  these  cases  depend,  appears  to  be  that  the  main  object  of  the  trans- 
action has  been  to  effect  something  entirely  distinct  i'rom  the  payment  of 
the  debt  of  the  third  person ;  and  that  such  payment,  though  a  consequence, 
is  not  yet  the  direct  object  of  the  transaction."  But  such  is  certainly  the 
direct  object  of  the  transaction  and  the  only  object  of  the  promisee ;  althotigh 
the  promisor  may  also  have  some  other  object  in  view.  Then  after  citing 
and  commenting  upon  most  of  the  cases  collected  in  the  foregoing  article, 
it  is  said  (p.  776)  that  the  decisions  relative  to  the  Hability  of  a  del  credere 
factor  rest  upon  the  same  principle,  and  the  case  of  Couturier  v.  Hastie  (cited 
in  chapter  xviii),  is  given  at  length,  with  the  following  comment:  "From  the 
reasoning  in  the  above  judgment,  may  be  deduced  the  true  limits  to  an  opin- 
ion, which  appears  at  one  time  to  have  prevailed,  that  a  contract,  if  founded 
on  a  new  consideration,  is  not  within  the  statute.  Now  it  is  plain  that  a  prom- 
ise to  pay  the  debt  of  another,  founded  on  the  antecedent  debt  alone,  is  nudum 
pactum ;  and  therefore  wherever  such  contract  is  to  answer  for  an  old  debt, 
there  must  be  a  new  consideration.  It  may,  perhaps,  therefore  be  safely 
laid  down,  that  wherever  the  principal  object  of  the  transaction  is  to  secure 
the  debt  of  another,  as  in  tRe  case  of  an  advance  to  A  on  the  guaranty  of  B 
the  case  will  be  within  the  statute;  and  that  the  only  cases  in  which  tht 
•nature  of  the  consideration  is  material,  are  such  as  those  in  the  class  above 
mentioned,  in  which  the  guaranty  is  only  a  secondary  matter."     In  3  Par- 


Art.  T.]  Collateral  Undertakings.  605 

to  be  fulfilled  out  of  a  fund  ;  the  other  wliere  the  debt  was 
a  charge  or  lien  upon  the  promisor' s  property. 


sons  on  Contracts,  fifth  edition,  page  24,  it  is  said  :  "  It  may  indeed  be 
stated  as  a  general  rule,  that  wherever  the  main  purpose  and  object  of  the 
promisor  is  not  to  answer  for  another,  but  to  subserve  some  purpose  of  his 
own,  his  promise  is  not  within  the  statute;  although  it  maybe  in  form  a 
promise  to  pay  the  debt  of  anotlier,  and  although  the  performance  of  it 
may  incidentally  have  the  eflect  of  extinguishing  the  liability  of  another. 
There  are  several  classes  of  cases,  whicli  may  perhaps  be  more  satisfactorily 
explained  upon  this  principle  than  upon  any  other.  Thus  if  a  creditor  has 
a  lien  on  certain  property  of  his  debtor  to  the  amount  of  his  debt,  and  a 
third  person,  who  also  has  an  interest  in  the  same  piopert}',  promises  the 
creditor  to  pay  the  debt,  in  consideration  of  the  creditor's  relinquishing  his 
lien,  this  promise  is  not  within  the  statute.  The  performance  of  the  promise, 
it  is  true,  will  have  the  effect  of  discharging  the  original  debtor;  but  there 
is  no  reason  to  suppose  that  this  constituted  in  any  degree  the  inducement 
to  the  promise,  or  was  at  all  in  the  contemplation  of  the  promisor."  Mr. 
Story,  in  the  fourth  edition  of  his  work  on  Contracts,  §  lOlo,  h,  says:  "  So 
where  the  incidental  effect  of  the  promise  is  to  pay  the  debt  of  another,  yet 
if  the  leading  object  of  the  special  promisor  be  to  subserve  some  purpose  of 
his  own,  it  is  not  within  the  statute."  The  meaning  is  evidently  that  such 
is  the  rule,  where  the  incidental  effect  oi  fulfilment  of  the  promise  is  to  pay 
the  debt  of  another ;  for  its  discharge  in  consequence  of  the  promise,  would 
bring  the  case  within  the  fourth  rule.  (Ante,  chapter  ix.)  Mr.  Browne  in 
his  Treatise  on  the  Statute  of  Frauds,  second  edition,  §  212,  states  the  rule 
as  follows:  "  That  whenever  the  transaction  between  the  parties  is  such 
that  the  primary  and  distinctive  obligation  assumed  by  the  defendant  is 
different  from  that  of  a  guarantor,  although  as  incidental  to,  and  in  the 
course  of,  the  discharge  of  that  obligation,  the  debt  of  another  is  satisfied, 
the  defendant's  promise  is  not  within  the  statute."  The  authors  of  the 
American  notes  to  Smith's  Leading  Cases,  volume  1,  page  483,  of  the  sixth 
edition,  say  :  "  Whenever  the  consideration  for  a  promise  to  pay  a  debt, 
for  which  another  is  answerable,  moves  to  the  promisor,  and  is  sufficient  to 
satisfy  the  requisitions  of  the  common  law,  it  Avill  not  be  within  the  statute, 
merely  because  it  is  in  terms  for  the  antecedent  or  cotemporaneous  debt  or 
default  of  another,  or  because  a  third  person  is  answerable  for  the  fulfilment 
of  the  obligation  assumed  by  the  promisor."  Several  American  cases  are 
then  cited,  and  the  note  proceeds:  "These  cases  show,  and  it  would  seem 
sufficiently  plain  on  principle,  that  when  the  consideration  for  a  promise 
moves  to  the  promisor,  or  can  justly  be  viewed  as  a  benefit  conferred  upon, 
or  service  rendered  to  him,  at  his  instance,  he  cannot  escape  from  the  per- 
formance of  his  obligation,  on  the  ground  that  some  one  else  i«  liable  for  its 
fulfilment,  or  that  a  debt  which  he  has  in  fact  made  his  own.  is  also  the  debt  of 


606  Collateral  Undertakings.        [Cli.  xvii. 

§  608.  The  first  of  these  propositions  involves  a  denial 
of  the  principle  governing  the  entire  class  of  cases  consid- 
ered in  the  fifteenth  chapter.  In  view  of  the  decisions 
therein  cited,  where  the  existence  of  a  fund  proceeding 
from  the  debtor,  in  contemplation  of  which  the  promise 
was  made,  was  held  to  be  sufficient  to  jjrevent  the  applica 
tion  of  the  statute,  on  that  ground  alone ;  although  in 
some  of  them  there  was  no  room  for  the  supposition,  that 
the  leading  object  of  the  promisor  was  to  benefit  himself ; 
the  cases  which  maintain  this  proposition  must  be  regarded 
as  of  local  authority  only,  and  not  entitled  to  recognition, 
as  exponents  of  a  principle  generally  recognized  in  Ameri- 
can jurisprudence. 

§  609.  AYith  respect  to  the  second  proposition,  we  remark 
that  it  involves  an  assumption,  which  cannot  be  justified 
upon  a  fair  and  reasonable  construction  of  many  of  the 
cases  ;  namely,  that  whenever  there  was  no  fund  proceed- 
ing from  the  debtor,  there  was  constructively  a  fund  pro- 
ceeding from  the  creditor.  In  those  cases  where  the  cred- 
itor surrendered  a  lien  upon  property,  in  which  the  promisor 
had  an  interest,  the  advocates  of  this  theory  regard  the  lien 
as  the  fund,  and  its  surrender  as  the  process  by  which  the 
fund  was  furnished.  But  this  is  a  very  forced  inference, 
and  often  diametrically  opposed  to  the  real  facts.  For  in 
all  the  cases  where  the  creditor' s  title  was  hostile  to  that 
of  the  promisor,  and  the  promise  was  in  general  terais  to 
pay  the  debt,  it  is  entirely  clear  that  in  fact  neither  party 

another  person.  For  as  under  these  circumstances,  the  promisor  contracts 
for  himself,  and  receives  an  equivalent  for  what  he  agrees  to  give,  the  prom- 
ise is  not.  in  any  just  sense  of  the  term,  a  promise  to  pay  the  debt  of  another, 
although  the  extinction  of  another's  debt  may  be  one  of  its  consequences." 
And  further  on  :  "  But  whatever  be  the  sacrifice  made  or  loss  incurred  by  the 
creditor,  it  will  not  give  validity  to  an  oral  promise  by  a  third  person  to 
pay  the  debt,  unless  it  confers  a  benefit  on  the  promisor,  of  sucli  a  nature 
that  the  liability  which  he  incurs  can  justly  be  called  his,  as  distinguished 
from  tlie  assumption  of  the  antecedent  or  cotemporaneous  obligation  of 
another.  Even  when  the  withdrawal  or  forbearance  of  a  distress  or  execu- 
tion, the  dissolution  of  an  attachment  or  the  extinguishment  of  an  incura- 


Art.  I.]  Collateral  Uxdektakings.  607 

voluntarily  assumed  a  relation,  by  which  one  furnished  and 
the  other  received  any  tiling,  to  be  specifically  devoted  to 
that  purpose.  On  the  contrary  the  promisor's  only  motive 
in  assuming  the  dt^bt  was  to  rid  himself  of  that  which  iutrr- 
fered  with  the  enjoyment  and  power  of  disposition  of  his 
own  property  ;  and  th«^  transaction  was  simply  the  compro- 
mise of  an  antagonistic  claim  of  title. 

§  610.  And  while  the  principle  which  the  English  au- 
thorities now  regard  as  having  controlled  those  cases  ; 
namely,  that  the  property  of  the  promisor  was  already 
liable  for  the  debt ;  does  not  in  any  degree  militate  against 
the  idea,  that  the  debtor  furnished  the  fund,  by  his  trans- 
fer to  the  promisor,  it  is  more  than  irrelevant  to,  for  it  is 
actually  inconsistent  with  the  idea,  that  the  surnmder  of 
the  promisee's  title  was  in  effect  the  furnishing  of  a  fund 
by  him,  from  which  to  pay  the  debt.  That  do(!trine 
amounts  only  to  this  ;  that  a  person  may  transfer,  by  an 
oral  promise,  to  his  person  and  to  all  liis  property,  a  lia- 
bility which  previously  rested  upon  part  of  liis  property 
only.  But  if  the  lien  of  the  promisee  was  a  fund  furnished 
by  him  for  the  payment  of  the  debt,  it  would  seem  to  fol- 
low that  the  pi'omisor  was  answerable  only  for  its  due 
appropriation ;  and  if  it  should  appear  that  the  value  of 
the  promisee's  lien  was  in  fact  less  than  the  debt,  the  ])rom- 
isor  would  be  liable  only  for  the  amount  actually  received. 
And  in  fact  this  conclusion  is  distinctly  stated,  in  connec- 
tion with  the  idea  that  the  promisee  furnished  a  fund,  in 

brance,  on  the  faith  of  a  promise  that  the  debt  shall  be  paid,  has  resulted  in 
the  loss  of  the  only  effectual  means  of  obtaininpf  payment  from  the  debtor, 
the  statute  will  operate  as  a  bar,  unless  it  can  be  shown  that  the  j)r()perty 
thus  released  was  the  defendant's,  or  that  he  derived  some  benefit  from  the 
transaction  of  which  the  law  can  take  cognizance."  "The  numerous  dicta 
which  may  be  found  the  other  way,  and  to  the  point  that  an  injury  to  the 
promisee  will  be  equally  eflTectual  with  a  benefit  to  the  promisor,  cannot 
weif^h  apainst  the  plain  meaning  of  the  act,  and  the  numerous  decisions, 
establishiuf,'  that  where  the  defendant  does  not  receive  or  profit  by  wiiat  the 
plaintiff  relinquishes,  the  consideration,  though  ample  at  common  law,  will 
not  sustain  the  promise  unless  reduced  to  writing." 


608  Collateral  Undektakings.       [Cli.  xvii. 

some  of  the  cases  where  such  an  inference  was  raised  by 
the  judges  who  pat  their  opinions  upon  that  ground.  But 
no  court  in  England  or  the  United  States  would  tolerate  a 
d«»fence,  that  the  property  fell  short  of  the  plaintiff' s  de- 
mand, in  a  case  where  the  promise  was  made  to  settle  a 
hostile  claim. 

§  611.  We  have  therefore  rejected  the  first  and  second 
of  the  propositions  just  mentioned.  But  it  must  be  under- 
stood that  we  do  not  deny  the  correctness  of  the  doctrine, 
that  the  statute  does  not  apply,  where  the  creditor  in  fact 
furnished  a  fund  for  the  fullilment  of  the  promise.  It 
would  be  sufficient  in  any  such  case,  in  order  to  save  the 
verbal  promise,  to  show  that  it  was  not  to  be  fulfilled  out 
of  the  means  of  the  promisor.  But  we  have  not  found  it 
necessary  to  place  such  cases  within  a  distinct  class,  or  to 
frame  a  rule  adapted  to  them.  For  if  a  tangible  fund  was 
really  furnished  by  the  promisee,  it  will  very  rarely  hap- 
pen that  any  question  can  arise  touching  the  application 
of  the  statute,  of  sufficient  gravity  to  require  a  solemn 
adjudication ;  and  where  any  such  question  arises,  some 
one  of  the  rules  already  stated  will  invariably  be  sufficient 
to  solve  it.  In  all  such  cases  the  attempt  to  falsify  the 
facts,  in  order  to  accommodate  a  legal  theory,  is  the  only 
real  source  of  perplexity. 

§  612.  If  these  views  are  sound,  it  follows  that  the  third 
and  fourth  propositions  are  to  be  examined  together ;  as 
the  correctness  of  the  third  depends  entirely  upon  the 
question,  whether  it  recognizes  the  true  rule  to  be  derived 
from  those  cases,  where  there  was  no  fund  proceeding  from 
the  debtor.  To  this  question,  the  fourth  proposition  re- 
turns a  negative  answer.  We  have  adopted  this  conclu- 
sion ;  not  without  great  hesitation  at  first ;  but  ultimately 
from  a  very  clear  conviction  of  its  correctness.  We  think 
that  a  careful  consideration  of  the  subject  will  result  in 
demonstrating,  that  no  rule  for  the  exclusion  of  cases  from 
the  statute,  depending  upon  the  leading  object  of  the 
promisor,  can  be  sustained  upon  principle,  or  the  weight 


Art.  I.]  Collateral  Undertakings.  609 

of  well  considered  adjudications.  If  we  do  not  groatly  err, 
the  definition  embodied  in  the  favorite  proposition  on  that 
subject,  is  merely  a  vague  and  loose  description  of  certain 
classes  of  cases,  possessing  a  common  feature  ;  the  existence 
of  which  is  a  mere  accident,  having  nothing  to  do  with  the 
application  of  the  statute. 

§  613.  The  proposition  which  we  have  thus  undertaken  to 
combat,  is  the  successor  of  the  doctrine  constituting  the 
definition  of  the  third  class  of  cases,  as  stated  in  Leonard 
V.  Vreden'burgh,{h)  and  now,  we  think,  properly  classed 
among  the  exploded  theories.  This  doctrine,  which  holds 
that  the  statute  does  not  apply,  "when  the  promise  to  pay 
the  debt  of  another  arises  out  of  some  new  and  original 
consideration  of  benefit  or  harm,  moving  between  the 
newly  contracting  parties,"  makes  the  validity  of  the 
verbal  promise  depend,  upon  the  existence  of  that  which 
merely  satisfies  the  common  law  definition  of  a  valuable 
consideration,  with  the  addition  of  the  words  "new  and 
original."  As  the  consideration  must  necessarily  be  new, 
whenever  the  promise  is  to  pay  the  pre-existing  debt  of 
another,  the  first  of  these  words  adds  little  or  nothing 
in  the  way  of  precision  or  amplification,  to  the  common 
law  requirements  of  a  consideration.  The  word  "orig- 
inal," although  obscure  in  itself,  is  explained  by  reference 
to  a  preceding  portion  of  the  same  opinion.  It  was  doubt- 
less intended  as  the  equivalent  of  the  expression,  "inde- 
pendent of  the  debt,"  which  had  just  previously  been  used 
by  the  learned  Chief  Justice  ;  meaning  that  the  considera- 
tion must  be  something  unconnected  with  the  subsisting 
indebtedness,  and  not  merely  something  growing  out  of  it, 
as  would  be  the  case  if  the  consideration  consisted  merely 
of  forbearance  to  the  debtor.  But  provided  it  was,  in  that 
sense  "original,"  there  seems  to  be  no  doubt  that  if  it 
was  any  thing  done  at  the  request  of  the  promisor,  which 
involved  either  benefit  to  him  or  haiTn  to  the  promisee,  the 
language  of  the  rule  was  satisfied,  (c) 

{h)  See  ante,  §  63. 

(c)  This  conclusion  is  opposed  to  that  which  Comstock,  C.  J.,  reached,  in 

77 


610  COLLATEEAL   UNDERTAKINGS.  [Cll^  XVII. 

§  614.  It  remains  to  be  seen,  whetlier  the  doctrine  wMch. 
has  taken  the  place  of  Chief  Justice  Kent' s  third  propo- 
sition is  more  defensible  than  its  predecessor.  This  in- 
quiry, which  will  be  carefully  prosecuted  in  the  next 
article,  will  close  this  long,  and,  we  fear,  tedious,  although 
necessary  discussion. 

ARTICLE  II. 

Discussion  of  the  question  whether  the  ahstract  proposition  can  he  supported,  that  a  promise 
to  pay  the  deht  of  another  is  not  within  the  statute,  whenever  the  leading  ohject  of  the  prom- 
isor was  not  to  discharge  the  dehtor,  hut  to  suhserve  some  interest  of  his  own,  distinct  from 
the  payment  of  the  deht  j  and  the  consideration  moved  to  him. 

§  615.  If  the  proposition,  which  has  succeeded  to  the 
popularity  formerly  enjoyed  by  Chief  Justice  Kent's  third 
definition  in  Leonard  v.  VredenburgJi,  was  to  the  effect 
that  whenever  the  leading  object  of  the  transaction  was 
not  to  make  the  promisor  answerable  for  the  debt,  default 
or  miscarriage  of  another,  the  promise  is  not  within  the 
statute,  although  the  undertaking  of  the  promisor  incident- 

that  portion  of  his  opinion  in  Mallory  v.  G-illett,  21  New  York,  412,  where 
he  commented  upon  this  doctrine,  with  a  commendable  efifort  to  reconcile  it 
with  the  principles  now  recognized.  (See  the  abstract  contained  in  the  note 
to  §  597,  ante.)  But,  be  it  said  with  great  deference  to  so  high  an  authority, 
the  concession  which  he  was  forced  to  malce,  that  harm  to  the  promisee  is 
equally  meritorious  with  benefit  to  the  promisor,  for  the  purpose  of  calling 
the  rule  into  operation,  completely  neutralizes  the  effect  of  his  ingenious 
argument.  The  qualification  that  it  must  always  move  to  the  promisor 
amounts  to  nothing,  until  some  example  shall  be  produced  of  mere  harm  to 
the  promisee  moving  to  the  promisor,  in  any  other  sense  than  that  it  was 
incurred  at  his  request.  The  proposition  of  Chief  Justice  Kent  has  uniformly 
been  understood,  as  we  construe  it  in  the  text,  and  it  cannot  be  reconciled 
with  the  modern  rulmgs.  In  the  language  of  Strong,  J.,  in  Maule  v.  Buck- 
nell,  (post,  §§  621,  622,)  "that  this  proposition  is  inaccurate,  is  almost  univer- 
sally admitted,  and  it  practically  denies  all  effect  to  the  statute.  It  cannot 
be  admitted  for  a  moment,  in  the  terms  in  which  it  was  expressed."  G-rover, 
J.,  in  his  opinion  delivered  in  Brown  v.  Weber,  38  New  York,  187,  repu- 
diated the  doctrine  in  language  equally  conclusive,  if  less  emphatic.  (See 
§  312,  ante.)  It  was  also  substantially  condemned  in  Clapp  v.  Lawton,  31 
Connecticut,  95;  Eddy  v.  Roberts,  17  Illinois,  505;  Kingsley  v.  Balcome,  4 
Barbour  (N.  Y.),  131;  Barker  v.  Bucklin,  2  Denio  (id.),  45;  Kelsey  v.  Hibbs, 
13  Ohio.  N.  S.,  340 ;  and  Durham  v.  Arledge,  1  Strobhart  (South  CaroUna),  5^ 


Art.  II.]  Collateral  Undektakixgs,  611 

ally  imposed  such  a  liability  upon  him,  its  general  correct- 
ness could  not  be  disputed. (a)  In  the  existing  state  of 
society,  almost  every  executory  agreement  involves,  to 
some  extent,  a  responsibility  for  the  acts  of  others ;  and 
an  analysis  of  the  component  parts  of  many  liabilities, 
constantly  assumed  in  the  course  of  ordinary  business 
transactions,  to  which  no  one  ever  imagined  that  the 
statute  of  frauds  has  any  application,  would  result  in 
proving  that  they  consist,  in  a  great  degree,  of  responsibili- 
ties of  that  character.  Every  contractor  for  the  erection 
of  a  building,  the  construction  of  a  railroad,  or  the  like ; 
every  common  or  private  carrier;  every  insurer  against 
loss  by  fire,  or  the  perils  of  navigation,  assumes  an  engage- 
ment, which  principally  consists  of  a  promise  to  answei 
for  the  defaults  or  miscaniages  of  others.  But  in  cases 
of  this  character,  neither  party  was  primarily  seeking  to 
impose  upon  the  promisor  a  responsibility  for  a  third  per- 
son ;  and  his  assumption  thereof  was  an  accidental,  or,  at 
most,  an  incidental  consequence,  of  a  common  design  to 
accomplish  some  other  purpose. 

§  616.  But  the  mere  statement  of  the  proposition,  that 
the  leading  object  of  the  promisor  was  to  subserve  his 
own  interest,  implies,  not  only  that  his  responsibility  for 
another  was,  or  at  least  that  it  may  have  been,  the  leading 
object  of  the  promisee,  but  also  that  it  was  one  object  of 
the  promisor  ;  or,  in  other  words,  that  both  parties  contem- 
plated that  the  engagement  of  the  promisor  should  be 
superadded,  as  an  additional  security  to  the  promisee,  to 
the  liability  of  the  third  person,  which  was  meanwhile  to 
continue  in  full  force.  If  it  be  said  that  such  cases 
are  without  the  statute,  this  is  practically  tantamount  to 
saying  that  no  case  is  within  the  statute,  if  the  considera- 
tion of  the  contract  moved  to  the  promisor;  for  no  man 
enters  into  a  contract,  with  the  leading  purpose  of  making 
himself  answerable  for  another's  debt,  or  of  discharging 

(a)  See  extract  from  the  13th  edition  of  Sehvyn's  Nisi  Priiis,  in  note  to 
§  606,  ante,  and  remarks  of  Poland,  C.  J.,  in  Fullam  v.  Adams,  note  to  §  620. 


612  Collateral  Undertakit^gs.        [Ch.  xvii. 

the  debtor ;  his  principal  object  being  invariably  to  secure 
the  consideration.  Consequently  the  most  undisguised 
contracts  of  guaranty  must  fall  without  the  statute,  provided 
a  distinct  consideration  was  paid  for  the  guaranty  ;  a  doc- 
trine which  will  not  only  include  guaranties  of  the  pay- 
ment of  precedent  debts,  but  those  where  the  guaranty 
was  made  at  the  time  when  the  principal  contract  was 
entered  into ;  as,  for  instance,  if  A  sells  goods  to  B,  and  at 
the  same  time  C  guaranties  the  payment  of  the  price  by  B 
in  consideration  of  a  commission  paid  to  him  by  A. 

§  617.  We  conceive  that  the  extended  recognition,  which 
this  proposition  has  obtained,  is  due  to  the  frequency  of 
cases  where  it  practically  coincides  with  the  well  settled 
principle,  that  the  statute  does  not  apply,  when  the  sub- 
stance of  the  promise  is  an  engagement  to  pay  the  prom- 
isor' s  own  debt,  or  a  debt  resting  upon  his  property.  Thus 
if  the  promisor  held  a  fund,  which  he  was  bound  in  some 
other  form,  or  to  some  person  other  than  the  promisee,  to 
apply  towards  the  payment  of  the  third  person' s  debt,  it 
amounts  to  the  same  thing,  whether  we  say  that  his  prom- 
ise to  pay  that  debt  was  substantially  a  promise  to  pay  his 
own  debt,  or  that  his  leading  object  was  to  relieve  himseK 
from  a  liability  resting  upon  him.  So  when  the  promisee 
surrendered  a  lien  upon  the  promisor' s  property  in  consid- 
eration of  his  promise  to  pay  the  amount  of  the  lien, 
in  general  we  may  say  indifferently  that  the  debt  was  sub- 
stantially his  own,  or  that  his  leading  object  was  to  rid 
his  own  property  of  an  incumbrance.  In  these,  and 
other  instances  which  might  be  named,  the  two  propo- 
sitions merely  express  the  same  idea  in  different  words. 
There  are  also  some  cases  without  the  statute,  where  both 
propositions  are  true  in  fact,  although  they  relate  to 
different  features  of  the  transaction ;  but  the  circumstances 
are  such  that  it  is  easy  to  overlook  the  true  reason  why  the 
statute  does  not  apply.  Thus  where  the  promisor  had 
once  been  liable  to  pay  the  debt,  and  had  been  only  techni- 
cally discharged,  a  renewal  of  his  engagement  is  a  prom- 
ise to  pay  his  own  debt ;  and  if  it  was  founded  upon  a 


Art.  II.]  Collateral  Undertakings.  613 

new  consideration  beneficial  to  him,  his  leading  object  was 
to  acquii-e  the  consideration.  But  in  such  a  case,  it  is  not 
true  that  either  proposition  may  be  indifferently  assigned, 
as  a  reason  why  the  statute  does  not  apply ;  for  if  both  are 
sound,  there  are  two  distinct  reasons  for  the  same  conclu- 
sion. It  is  obvious,  however,  that  if  one  is  sound  and  the 
other  unsound,  no  immediate  practical  inconvenience  will 
ensue,  if  the  unsound  proposition  be  assigned  as  the 
ground  of  the  decision.  Hence  an  error  originating  in 
such  a  case  would  probably  long  pass  unchallenged. 

§  618.  But  we  have  now  to  deal  with  those  cases,  which 
depend  exclusively  upon  the  proposition  under  examina- 
tion ;  and  to  consider  the  question  whether  it  enunciates  a 
correct  general  rule,  embracing  all  cases  to  which  its  terms 
fairly  apply,  and  taking  them  out  of  the  statute,  notwith- 
standing that  they  would  otherwise  be  within  it.  This  is 
l)recisely  the  eff'ect  which  some  writers  claim  for  the  doc- 
trine in  question,  and  even  for  more  indefinite  and  compre- 
hensive statements  of  a  doctrine  of  the  same  general 
character.  In  this  position  they  are  supported  by  several 
dicta  in  the  reports,  and  some  adjudications.  As  a  lead- 
ing author  says,  in  the  course  of  a  defence  of  this  propo- 
sition, "the  principle  is  large  enough  to  embrace  every 
instance  in  which  a  guaranty  is  based  upon,  or  given  for 
a  valuable  consideration,  moving  directly  or  indirectly  to 
the  guarantor.  "(5)  It  is  manifest  that  if  there  is  any 
principle  of  such  sweeping  application,  an  element  of 
uncertainty  will  be  present,  in  most  cases  where  the  statute 
is  supposed  to  be  applicable  to  a  promise  to  pay  a  third 
person's  pre-existing  debt;  for  there  are  but  few  such 
cases,  where  a  consideration  did  not  move  directly  or 
indirectly  to  the  promisor,  and  where  his  interest  was  not 
subserved  thereby. 

§  619.  Still  this  proposition  has  been  repeated  so  often, 
by  jurists  of  such  acknowledged  reputation,  as  being 


(fc)  1  Smith's  Leading  Cases,  sixth  American  edition,  page  492. 


614  Collateral  Undertakings.        [Ch.  xvii. 

unquestionably  sound  in  law,  that  it  requires  some  courage 
to  attack  it ;  and  perhaps  we  would  not  have  ventured  to 
do  so  single  handed ;  but  the  task  has  been  undertaken, 
and  we  think  successfully  accomplished,  in  two  recent 
adjudications,  the  reasoning  in  which  is  very  strong  to 
show  that  it  cannot  be  maintained.  Indeed  a  grave  ques- 
tion may  arise  whether  in  one  of  them,  the  court  has 
not  gone  too  far  in  the  opposite  direction,  and  by  an 
erroneous  explanation  of  some  of  the  cases,  circumscribed 
too  much  the  field,  within  which  the  principle  that  the 
promise  is  good  without  writing,  where  the  promisor  or 
his  property  was  previously  liable  for  the  debt,  can 
reasonably  and  safely  operate. 

§  620.  In  the  first  of  these  cases,  Fullam  v.  Adams,  37 
Vermont,  391,  A.  D.  1864,  the  Supreme  Court  of  Vermont 
distinctly  overruled  one  of  the  propositions,  by  which 
Chief  Justice  Comstock  in  Mallory  v.  Gillett,  illustrated 
his  third  class  of  cases,  being  those  "where,  although  the 
debt  remains,  the  promise  is  founded  on  a  new  considera- 
tion which  moves  to  the  promisor,  "(c)  The  action  was 
brought  by  a  lawyer,  upon  a  verbal  promise  made  by  the 
defendant,  by  way  of  retainer,  on  the  occasion  of  the 
defendant' s  employment  of  the  plaintifi"  as  his  counsel  in 
an  expected  litigation,  relative  to  his  transactions  with  his 
brother  John,  who  had  failed  in  business.  The  promise 
of  the  defendant  is  stated  in  the  report  to  have  been,  that 
he  "would  pay  the  plaintiff"  one  half  of  what  the  said 
John  was  owing  the  plaintiff",  amounting  to  some  $300  or 
$400,  and  reasonable  fees  and  charges  for  his  services." 
The  plaintiff"  had  a  verdict,  and  on  an  exception  taken  by 
the  defendant  to  the  admission  of  the  evidence,  on  the 
ground  that  the  contract  was  within  the  statute  of  frauds, 
the  judgment  was  reversed  and  a  new  trial  granted.  The 
opinion,  delivered  by  Poland,  C.  J.,  is  very  voluminous ; 
it  attacks  the  whole  doctrine  that  a  new  and  distinct  con- 
sideration, moving  from  the  promisee  to  the  promisor,  will 

(c)  Ante,  §  64. 


Art.  II.]  Collateral  Undertakings.  61o 

suffice  to  take  out  of  the  statute  a  promise  to  pay  the  debt 
of  another,  whatever  may  be  its  nature ;  and  it  asserts 
that  the  only  cases,  where  such  a  promise  is  not  witliin  the 
statute,  are  those  where  payment  of  the  debt  would  dis- 
charge some  duty  or  obligation  resting  upon  the  promisor ; 
all  others  being  mere  guaranties,  in  whatever  form  they 
may  be  disguised,  or  whatever  specious  reasoning  may  be 
resorted  to,  for  the  purpose  of  giving  the  transaction  a 
different  appearance,  (c?) 


(d)  The  learned  Chief  Justice  began  with  an  examination  of  the  question, 
whether  there  was  a  sufficient  consideration  for  the  defendant's  promise ; 
upon  which  point  he  concluded  that  the  retainer  was  sufficient,  it  being 
customary  for  members  of  the  bar  to  charge  and  receive  fees  upon  a  retainer 
merely.  Next  the  true  construction  of  the  agreement  was  examined,  and  he 
concluded  that  the  promise  was  not,  as  the  plaintiff  contended,  to  pay  a 
certain  sum  of  money,  the  amount  of  which  was  to  be  fixed  by  reference  to 
the  debt  due  from  John  to  the  plaintiff,  and  payment  of  which  would  not 
aflfect  the  liability  of  John  to  the  plaintiff;  but  that  it  was  a  contract  to 
guaranty,  or  become  responsible  for  one  half  of  John's  debt;  so  that  payment 
by  John  of  all  his  debt  to  the  plaintiff  would  discharge  the  defendant  from 
liability  under  the  promise;  and  on  the  other  hand,  fulfilment  of  the  promise 
by  the  defendant  would  reduce  John's  debt  to  one  half  of  its  original  amount. 
The  promise,  he  said,  was  therefore  a  promise  to  pay  the  debt  of  another, 
and  consequently  directly  within  the  terms  of  the  statute.  Nevertheless  it 
is  well  settled,  that  a  state  of  facts  may  exist,  which  will  make  such  a  prom- 
ise binding  without  a  writing;  but  the  difficulty  is  to  ascertain  from  the 
decisions,  by  what  rule  the  presence  of  those  facts  is  to  be  tested.  In  con- 
sidering this  question,  the  learned  Chief  Justice  referred  to  the  classifica- 
tion of  the  cases  by  Chief  Justice  Kent  in  Leonard  v.  Vredenburgh  and 
to  that  made  by  Chief  Justice  Comstock  in  Mallory  v.  Gillott,  remarking 
that  this  was  precisely  one  of  the  illustrations  of  the  latter's  third  cla.<;s  of 
cases  not  within  the  statute.  He  observed  that  Mallory  v.  Gillett  holds, 
and  the  opinion  therein  clearly  shows  the  rule  to  be  well  established,  that 
where  a  creditor  surrenders  to  the  debtor,  a  security  which  he  holds  for  the 
payment  of  a  debt,  upon  the  promise  of  a  stranger  to  pay  him,  the  promise 
is  within  the  statute ;  but  where  the  security  is  surrendered  to  the  promisor, 
the  promise  is  not  within  the  statute.  But  he  .said  that  in  both  cases  the 
debtor  continues  to  be  liable,  and  the  surrender  of  the  security  was  equally 
a  detriment  to  the  creditor,  and  so  an  ample  consideration  for  the  new  prom- 
ise. The  distinction  between  the  two  depends,  said  the  learned  Chief  Justice, 
upon  the  same  principle,  which  takes  out  of  the  statute  promises  made  by  a 
purchaser  of  property  to  pay  the  price  to  a  creditor  of  the  vendor,  and 


616  COLLATEEAL   UnDEKTAKINGS.  [Cll.  XVII. 

§  621.  The  next  case,  Maule  v.  Buclcnell,  50  Pennsyl- 
vania, 39,  A.  D.  1865,  contains  an  equally  decisive 
repudiation  of  the  doctrine  now  under  examination.  The 
substance  of  the  first  count  of  the  declaration  was,  that  the 
plaintiff  and  three  others  were  directors  of  the  Eastern 
Market  Company,  and  had  control  of  its  affairs ;  and  that 
the  defendants,  in  consideration  of  the  transfer  to  them,  by 


promises  to  pay  a  debt  made  to  a  creditor,  by  a  person  who  has  received 
from  the  debtor  a  fund  for  that  purpose.  In  both  those  classes  of  cases  the 
true  reason  why  the  promise  is  not  within  the  statute,  is  that  the  promisor 
holds  a  fund  of  the  debtor  for  the  purpose  of  paying  the  debt,  so  that  it  is 
his  duty  to  do  so;  and  when  he  promises  the  creditor  to  pay  it,  he  promises 
in  substance  to  pay  his  own  debt,  and  not  that  of  another;  and  although  the 
original  debtor  still  remains  liable,  his  real  relation  is  rather  that  of  a  surety 
for  the  person  who  has  assumed  the  duty  of  payment,  than  of  a  principal 
for  whom  the  latter  has  become  a  sureiy.  The  opinion  then  proceeded  to 
amplify  the  proposition  that  the  cases  where  a  creditor  holds  a  security  for 
the  payment  of  the  debt,  which  he  surrenders  to  the  promisor  upon  the 
latter's  undertaking  to  pay^the  debt,  stand  substantially  upon  the  same  prin- 
ciple as  the  others  just  mentioned.  The  substance  of  Williams  v.  Leper  and 
kindred  cases  is  that  the  party  making  the  promise  is  liable,  because  by  the 
arrangement  he  becomes  the  holder  of  a  fund,  which  was  appropriated  to  the 
payment  of  the  debt,  and  clothed  with  a  duty  or  trust  in  respect  thereto, 
which  the  law  will  enforce  in  favor  of  the  promisee.  In  these  cases  the 
promise  was  founded  upon  a  new  consideration,  moving  between  the  newly 
contracting  parties^  and  for  the  benefit  of  the  promisor;  but  that  fact  does 
not  prove  that  all  contracts  founded  upon  such  a  consideration  are  without 
the  statute ;  on  the  contrary,  when  the  promise  is  a  mere  contract  of 
guaranty,  it  comes  within  the  statute,  although  a  distinct  consideration 
therefor  be  paid  directly  to  the  party  making  the  promise.  This  the 
learned  Chief  Justice  illustrated  by  the  principle  upon  which  the  cases  relat- 
ing to  the  contracts  of  a  factor  acting  under  a  del  credere  commission  were 
decided,  (see  chapter  xviii,  article  ii),  which  is,  he  contended,  merely  that 
the  factor  undertakes  for  his  own  fidehty;  and  by  references  to  other  cases, 
where  a  promise  to  pay  the  precedent  debt  of  another,  made  upon  a  new 
consideration  moving  directly  from  the  promisee  to  the  promisor,  was  held 
to  be  within  the  statute.  The  result  of  this  examination  is  said  to  be,  that 
whether  the  promise  is  within  or  without  the  statute,  does  not  depend  upon 
whether  the  consideration  moved  wholly  between  the  new  parties ;  but  the 
test  is  whether  the  leading  object  and  purpose  of  the  transaction  were  to 
become  responsible  for  the  payment  of  another  person's  debt.  And  it  is 
almost  impossible,    in  the  learned   Chief  Justice's   opinion,    to   imagine   a 


Art.  II.]  Collateral  Undertakings.  617 

the  plaintiff  and  his  associates,  of  a  certain  amount  of  the 
stock  held  by  them  in  that  company,  and  tlie  resignation 
by  them  of  their  offices  as  directors  thereof,  whereby  the 
defendants  miglit  themselves  become  directors,  promised 
to  pay  certain  debts  of  the  corporation,  and  among  others 
a  debt  due  to  the  plaintiff  which  he  claimed  to  recover. 
The  second  count  was  framed  with  a  view  of  recovering 


case  where  a  promise  to  pay  the  debt  of  another,  for  which  he  continues  to 
be  liable,  made  upon  a  consideration  moving  wholly  from  the  creditor,  and 
in  which  the  debtor  has  no  concern,  can  have  any  other  leading  purpose  and 
object  than  to  make  the  promisor  a  surety  or  guarantor  of  the  debt.  Tlie  argu- 
ment that  such  a  transaction  should  be  treated  as  a  purchase  of  the  considera- 
tion by  the  promisor,  will  not  bear  investigation;  because,  if  it  is  sound,  then 
the  promisor  only  pays  for  what  he  receives,  and  after  he  has  fulfilled  his  prom- 
ise the  creditor  may  still  proceed  to  collect  the  debt  from  the  original  debtor; 
and  payment  by  the  original  debtor  will  not  protect  the  promisor,  against  an 
action  by  the  creditor  for  payment  of  the  purchase  price.  For  these  reasons, 
as  well  as  because  it  is  not  comprehensible,  why  the  parties  to  an  actual  sale 
and  purchase  should  effect  their  object  by  means  of  a  contract  to  pay  the  debt 
of  another,  he  said  that  such  a  contract  is  made  with  the  purpose  and  intent  to 
answer  for  the  debt  of  another;  thatwhat  is  paid  or  done,  as  a  consideration, 
is  for  that  purpose  merely;  and  to  call  it  a  purchase  and  sale,  is  a  simple 
perversion  of  those  terms.  The  result  is  summed  up  thus:  "  If  the  real  sub- 
stanceofthe  promise  be  to  performsomeduty  or  obligation  of  the  party  making 
the  promise,  it  is  not  within  the  statute,  though  in  form  it  is  a  promise  to  pay 
another's  debt,  and  the  result  of  its  performance  may  effect  the  payment  of 
the  debt  of  another.  And  we  believe  it  will  be  found  that  in  all  the  cases 
now  regarded  as  sound,  where  it  has  been  held  that  a  parol  promise  to  pay 
the  debt  of  another  is  binding,  the  promisor  held  in  his  hands  funds,  securities 
or  property  of  the  debtor,  devoted  to  the  payment  of  the  debt;  and  his 
promise  to  pay  attaches  upon  his  obHgation  or  duty  growing  out  of  the 
receipt  of  such  fund."  If,  the  learned  Chief  Justice  proceeded,  the  promise 
is  founded  upon  the  consideration  of  tlie  property  sold  by  the  debtor  to  the 
promisor,  or  placed  by  him  in  the  promisor's  hands  to  pay  the  debt;  or  if  a 
creditor,  holding  a  security  received  from  the  debtor,  surrenders  it  to  the 
promisor  upon  his  promise  to  pay  the  debt ;  in  either  case,  if  the  promise  is 
not  fulfilled,  the  debtor  would  have  a  remedy  in  some  form  against  the  prom- 
isor. But  if  the  exemption  from  the  operation  of  the  statute  shall  be  carried 
any  further,  every  beneficial  purpose  of  the  statute  is  gone.  Hence  the 
rule,  as  laid  down  by  Ciiief  Justice  Comstock,  that  "A,  for  any  compensation 
agreed  upon  between  him  and  B,  may  undertake  that  C  shall  pay  his  debt 
to  B,"  cannot,  in  the  opinion  of  the  court,  be  maintained. 
78 


618  Collateral  Undertakings.        [Cli.  xvii. 

damages  for  the  depreciation  of  the  plaintiff' s  remaining 
stock,  in  consequence  of  the  defendants'  failure  to  pay 
the  debts  due  to  other  persons.  At  the  trial  the  plaintiff 
offered  to  prove  a  verbal  promise,  to  the  effect  stated  in  the 
declaration,  and  sundry  other  facts  tending  to  show  that 
the  affairs  of  the  company  were  in  good  condition,  at  the 
time  of  the  transfer ;  but  it  had  failed  in  consequence  of 
the  defendants'  mismanagement  and  breach  of  their  prom- 
ise ;  and  that  the  object  of  the  transaction  was,  at  least  in 
part,  to  improve  the  value  of  the  stock  of  the  company, 
remaining  in  the  hands  of  the  plaintiff,  after  the  transfer 
of  a  portion  thereof  to  the  defendants  ;  and,  on  the  part  of 
the  defendants,  to  obtain  the  control  of  the  affairs  of  the 
company,  they  being  large  creditors.  But  the  plaintiff  was 
nonsuited,  on  the  ground  that  the  promise  was  within  the 
statute  of  frauds ;  and  a  motion  to  set  aside  the  nonsuit 
having  been  denied,  a  writ  of  error  was  sued  out  of  the 
Supreme  Court,  where  the  judgment  below  was  affirmed. 
Three  objections  were  made  to  the  recovery,  but  the  Su- 
preme Court  held  that  the  one  arising  out  of  the  statute 
of  frauds  was  insuperable,  and  declined  to  consider  the 
others.  The  opinion  was  delivered  by  Strong,  J.  The 
abstract  of  the  views  of  the  learned  judge,  contained  in 
the  note,  is  commended  to  the  reader' s  attention ;  it  will 
be  noticed  that  they  generally  coincide  with  the  opinions 
expressed  in  these  pages,  with  respect  to  the  other  classes 
of  cases,  governed  by  the  principle  that  where  the  promise 
is  substantially  to  pay  the  promisor' s  own  debt,  the  case  is 
not  within  the  statute.  (0) 


(e)  The  learned  judge  began  by  denying  the  proposition,  that  a  promise  to 
pay  the  debt  of  anotlier  can  be  taken  out  of  the  statute,  because  it  rests  upon  a 
new  consideration,  moving  from  the  promisee  to  the  promisor.  "  The  object 
of  the  statute,"  he  said,  "  is  protection  against  fraudulent  practices,  commonly 
endeavored  to  be  upheld  by  perjury ;  and  to  these  all  suits  upon  verbal  con- 
tracts to  answer  for  another's  debt  or  default  are  equally  exposed,  no  matter 
whence  the  consideration  of  the  contract  proceeded,  or  to  whom  it  passed." 
The  statute,  he  continued,  makes  no  reference  to  the  consideration ;  it  is 
only  the  promise  which  is  mentioned.  Yet  there  is  a  class  of  cases,  where 
the  consideration  has  been  more  regarded  than  the  nature  of  the  promise. 


Art.  II.]  Collateral  Undertakings.  619 

§  622.  We  will  now  take  up  those  cases  which  present 
the  most  marked  contrast  to  Fullam  v.  Adams  andllaule 
V.  Bicclmell,  being  those  which  foi-m  the  crucial  test  of  the 
soundness  of  the  supposed  legal  ]:)rinciple,  which  the  latter 
condemn  so  decisively.  By  this  we  mean  cases  which 
were  taken  out  of  the  statute,  exclusively  by  the  operation 

These  do  not  depend  upon  the  fact  that  the  consideration  moved  from  the 
promisee  to  the  promisor;  but  upon  the  fact  that  it  was  either  a  transfer  of  the 
creditor's  claim  to  the  promisor,  making  the  transaction  a  purchase;  or  that 
it  was  a  transfer  to  the  promisor  of  a  fund  for  tlie  payment  of  the  debt,  or 
property  or  securities  charged  with  its  payment,  whether  they  came  from 
the  debtor  or  the  promisee.  "  But,"  said  the  learned  judge,  "  except  in  such 
cases,  and  others  perhaps  of  a  kindred  nature,  in  which  the  contract  shows 
an  intention  of  the  parties,  that  the  new  promisor  shall  become  the  principal 
debtor,  and  the  old  debtor  become  but  secondarily  liable ;  the  rule,  it  is 
believed,  may  be  safely  stated,  that,  while  the  old  debt  remains,  the  new 
must  be  regarded  as  not  an  original  undertaking,  and  that  it  is  therefore 
within  the  statute.  At  least  this  may  be  stated  as  a  principle  generally 
accurate."  "Ami  it  will  be  found,  after  examination,  that  in  nearly  all  the 
decisions,  in  which  it  has  been  held  that  such  a  promise  is  not  within  the 
statute,  there  was  some  liability  of  the  promisor  or  his  property,  inde- 
pendent of  his  express  promise ;  or  that  he  had  become  the  actual  debtor,  so 
that  as  between  him  and  the  original  debtor  the  superior  liability  was  his. 
In  such  cases  the  consideration  for  the  new  promise  is  regarded  as  material." 
After  examining  the  decisions  in  Pennsylvania,  to  show  that  they  are  in 
harmony  with  these  views,  he  added,  that  among  all  the  authorities  cited  by 
the  plaintiff  in  error,  there  were  none  inconsistent  therewith,  except  what 
was  said  by  Kent,  C.  J.,  in  Leonard  v.  Vredenbu.'-gh,  respecting  the  third 
class  of  cases  not  within  the  statute,  which  is  now  almost  universally  admit- 
ted to  be  inaccurate.  Then,  reverting  to  the  facts  of  the  case  at  bar,  he 
concluded  as  follows :  "  The  company  remained  the  primary  debtor,  and  had 
they  paid,  the  defendants  would  have  had  nothing  to  pay,  either  to  the  plaint- 
iff or  to  the  original  debtor.  The  promise  of  the  defendants  was  therefore 
in  no  sense  a  promise  to  pay  their  own  debt,  or  a  debt  of  their  property.  It 
was  not  in  relief  of  any  property  they  owned,  or  upon  which  they  held  a 
lien.  Nor  was  the  consideration  for  the  promise  of  a  nature  to  take  the 
case  out  of  the  statute.  It  was  not  a  placing  in  the  hands  of  the  defendants, 
by  the  debtor  or  the  creditor,  funds,  securities,  or  property  of  the  debtor, 
pledged  or  devoted  to  the  payment  of  tlie  debts.  The  transfer  of  the  small 
number  of  shares  of  stock,  and  the  resignation  by  the  plaintiffs  of  their 
directorship,  were  to  enable  the  defendants  to  become  directors,  not  to  place 
funds  in  their  hands  to  pay  the  debts.  The  averment  is,  that  it  was  their 
own  money  they  promised  to  pay  in  discharge  of  the  debts,  and  it  is  because 


620  Collateral  Undertakings.        [Ch.  xvn. 

of  that  principle ;  the  circumstances  being  such,  that  with- 
out its  help,  they  must  have  been  decided  otherwise. 
It  may  occasion  some  surprise,  and  it  certainly  affords  a 
very  strong  argument  against  the  existence  of  any  such 
principle,  as  a  rule  of  general  application,  that  although  it 
has  been  asserted  as  law  in  scores  of  cases,  extending 
over  certainly  a  quarter  of  a  century,  our  researches  have 
enabled  us  to  find  but  two,  and  those  of  quite  recent  date, 
which  answer  this  description.  (/)  And  it  is  believed 
that  neither  of  these  cases  can  be  sustained  by  any  logical 
course  of  reasoning  ;  on  the  contrary  that  they  are  striking 
illustrations  of  the  inconsistent,  not  to  say  dangerous  con- 
sequences, of  the  rule  by  which  they  were  governed. 

§  623.  The  first  of  these  decisions  comes  to  us  from  a 
source  no  less  authoritative  than  the  Supreme  Court  ot 
the  United  States.  In  Emerson  v.  Slater,  22  Howard,  28, 
decided  A.  D.  1859,  it  appeared  at  the  trial  that  the  plaint- 
iff had  entered  into  a  written  contract  with  a  railroad 
company,  whose  road  was  in  process  of  construction, 
providing  for  the  building  of  certain  bridges  for  the  com- 
pany, for  a  stipulated  compensation,  payable  in  specified 
proportions  and  at  specified  periods  therein  mentioned; 
under  which  the  plaintiff  had  commenced  the  work ;  but 
the  railroad  company  having  failed  and  become  insolvent, 

they  did  not  pay  their  own  money  that  this  action  is  brought."  Compare  this 
case  with  Alger  v.  Scoville,  67  Massachusetts  (1  Gray),  391,  ante,  §  376,  and 
post,  §  630.  The  principal  difference  between  the  two  cases,  with  respect  to 
the  circumstances  attending  the  consideration,  is  that  in  the  latter  it  was 
expressly  shown  that  the  transfer  gave  the  defendant  the  entire  control  of 
the  corporation;  but  the  distinction  is  beheved  to  be  immaterial,  and  the 
true  ground  upon  which  that  case  can  be  sustained,  is  that  the  promise  was 
not  made  to  the  creditor.  Whether  in  Maule  v.  Bucknell  the  same  principle 
might  not  have  saved  the  cause  of  action  under  the  second  count,  was  not 
argued  or  considered. 

(/)  ^®  ^^y  °"''  °^  view  those  cases  which  affirm  that  the  statute  does  not 
apply,  where  a  lien  upon  the  debtor's  property  has  been  surrendered  to  him, 
in  consideration  of  the  promise;  it  being  now  admitted  that  they  proceeded 
upon  an  erroneous  principle,  and  were  incorrectly  decided,  unless  the  promise 
could  be  saved  from  the  statute  by  some  other  rule. 


Art.  II.]  Collateral  Undertakings.  621 

he  had  stopped  and  refused  to  proceed  furtlier.  The  defend- 
ant was  a  large  stockholder  in  the  company,  and  holder 
of  its  bonds  ;  and  he  had  leased  to  the  company  a  quantit}'- 
of"  railroad  iron  to  be  laid  down  on  the  road,  under  a  con- 
tract, whereby  the  company  was  to  pay  him,  for  the  use 
of  the  iron,  certain  sums  monthly,  until  the  full  value 
thereof,  as  fixed  in  the  contract,  with  interest,  should  be 
paid ;  and  then  the  defendant  was  to  sell  the  iron  to  the 
company.  In  order  to  secure  these  payments,  the  com- 
pany had  assigned  to  the  defendant  the  proceeds  of  the 
railroad,  to  an  amount  equal  to  the  value  of  the  iron, 
which  the  superintendent  was  to  retain  in  his  hands. 

§  624.  Under  these  circumstances,  the  defendant  entered 
into  a  written  agreement  with  the  plaintiff,  to  the  effect 
that  the  latter  would  complete  the  work  provided  for  in 
his  contract  with  the  company,  by  a  specified  time  ;  for 
which  the  defendant  would  pay  him,  part  in  cash  and  part 
by  his  notes,  certain  fixed  sums,  at  periods  specified  in 
the  contract ;  that  the  payments  should  be  applied  upon 
the  company's  indebtedness  to  the  plaintiff ;  and  that  the 
contract  between  the  parties  should  not  affect  the  conti-act 
between  the  plaintiff  and  the  company,  or  any  action 
pending  between  them.  In  order  to  indemnify  the  def(^nd- 
ant  against  his  contract  with  the  plaintiff,  the  company 
also  transferred  to  him  certain  property,  which  appeared 
to  include  all  its  property,  except  its  franchise.  The 
plaintiff  did  not  complete  the  work,  within  the  time 
specified  in  the  contract  between  him  and  the  defend- 
ant ;  apd  it  had  been  held,  when  the  cause  was  formerly 
before  the  court,  ((7)  that  time  was  of  the  essence  of  the 
contract ;  but  upon  this  trial,  he  offered  to  prove  a  verbal 
extension  by  the  defendant  of  the  stipulated  time  for  per- 
fonnance,  to  a  day  subsequent  to  that,  when  the  work  was 
actually  performed.  This  was  excluded  b}-  the  judge,  on 
the  ground  that  as  the  written  agreement  was  a  special 


(g)  See  Slater  v.  Emerson,  19  Howard  224,  where  the  substance  of  the 
contracts  is  given  at  greater  length 


622  Collateral  Undertakings.        [Ch.  xvii. 

promise  to  answer  for  the  debt,  default,  or  miscarriage  of 
another,  the  substituted  agreement,  not  being  in  writing, 
was  within  the  statute.  The  plaintiff  thereupon  asked  to 
recover  upon  the  common  counts ;  but  the  judge  ruled 
that  he  was  not  entitled  to  do  so,  and  the  defendant  had  a 
verdict,  and  judgment  thereon.  The  writ  of  error  was 
brought  to  review  these  rulings  upon  exceptions,  and  after 
argument  the  judgment  was  reversed. 

§  625.  Mr.  Justice  Clifford,  delivering  the  opinion  of  the 
court,  referred  to  the  question  whether  the  statute  permits 
the  subsequent  verbal  alteration  of  a  written  contract,  in  a 
case  falling  within  its  terms,  and  said  that  although  the 
weight  of  authorities  was,  in  his  opinion,  against  the  valid- 
ity of  such  an  alteration,  it  was  unnecessary  to  decide  the 
question  in  the  present  case ;  as  the  court  were  of  opinion 
tlia;^  the  promise  contained  in  the  written  agreement  was 
not  within  the  statute ;  and  hence  the  common  law  rule 
applied,  by  which  a  verbal  waiver  or  enlargement  of  the 
time  of  performance  was  valid.  His  Honor  then  laid  down 
the  rule,  governing  this  class,  as  follows  :  "Whenever  the 
main  purpose  and  object  of  the  promisor  is  not  to  answer 
for  another,  but  to  subserve  some  pecuniary  or  business 
purpose  of  his  own,  involving  either  a  benefit  to  himself, 
or  damage  to  the  other  contracting  party,  his  promise  is 
not  within  the  statute,  although  it  may  be  in  form  a  prom- 
ise to  pay  the  debt  of  another,  and  although  the  perform- 
ance of  it  may  incidentally  have  the  effect  of  extinguishing 
that  liability."  Applying  this  principle,  the  learned 
judge  said  that  this  agreement  was  an  original  one  }  on  its 
face  it  purported  to  be  between  parties  for  their  own  bene- 
fit, and  the  contract  between  the  plaintiff  and  the  company 
was  apparently  referred  to,  as  descriptive  of  the  subject 
matter  of  the  contract  between  the  parties  ;  and  doubtless 
also  because  the  company  had  indemnified  the  defendant. 
But,  he  continued,  when  the  attending  circumstances  are 
considered,  the  presumption  is  much  stronger  that  it  was 
made  for  the  defendant' s  benefit  mainly,  if  not  entirelj- 
The  defendant  had  leased  railroad  iron  to  the  company, 


Art.  II.]  Collateral  Undertakings.  C23 

for  the  use  of  the  road  ;  and  as  security  for  the  payment, 
he  had  an  assignment  of  the  proceeds  ;  unless  tlie  bridges 
were  built,  there  would  be  no  proceeds ;  and  as  the  de- 
fendant had  already  an  assignment  of  all  the  available 
means  of  the  company,  to  secure  himself  for  this  new  lia- 
bility, the  company  could  not  pay  for  the  iron.  The 
learned  judge  added  that  damage  also  resulted  to  the 
plaintifl',  by  his  going  on  with  the  contract,  after  the  com- 
pany had  failed  to  pay  according  to  its  terms,  and  by  his 
agreeing  to  receive  payment  in  a  different  manner  than  that 
provided  for  in  the  contract  It  was  not  an  agreement  to 
pay  a  subsisting  debt,  but  for  work  and  materials  there- 
after to  be  furnished.  For  all  these  reasons  the  court  con- 
cluded that  the  defendant' s  promise  was  original,  and  that 
it  was  unnecessary  to  decide  whether  the  effect  of  the  in- 
demnity, given  by  the  company  to  the  defendant,  was  to 
take  the  contract  out  of  the  statute,  {h) 

§  626.  Without  stopping  to  inquire,  whether  the  decis- 
ion upon  the  writ  of  error  might  not  have  been  sustained 
on  some  other  ground  ;  as  that  the  verbal  waiver  was  good 
because  the  defendant  and  the  company  had  accepted  the 
performance ;  or  that  the  indemnity,  pre- supposing  a 
promise  to  the  debtor,  of  which  the  plaintiff  might  avail 
himself,  or  a  fund  furnished  by  the  debtor,  took  the  case 
out  of  the  statute  ;  we  venture  to  express  the  opinion,  with 
all  due  submission  to  the  distinguished  tribunal  in  ques- 
tion, that  this  judgment  cannot  be  supported  upon  the 
grounds  assigned.  The  rule,  which  is  propounded  as  con- 
trolling this  class  of  cases,  professes  to  be  taken  from  the 
New  York  cases  of  Leonard  v.  Vredenb2irr/7i,  and  Farley 
V.  Cleveland,  and  the  Massachusetts  cases  of  Nelson  v. 
Boynton  and  Alger  v.  Scomlle;  all  of  wliich  are  cited, 


Qi)  Some  of  the  facts,  as  stated  in  this  report,  may  leave  the  question  some- 
what doubtful  whether  the  plaintiff  could  have  recovered  against  the  company. 
If  so.  it  is  believed  that  they  will  be  dispelled  by  a  reference  to  the  report 
in  19  Howard  224,  where  the  provisions  of  the  contracts  are  given  somewhat 
diflferently,  and  additional  facts  are  stated. 


634  Collateral  Undertakings.        [Cli.  xvii. 

and  the  rules  which  they  lay  down  are  given  at  length  in 
these  pages.  But  it  contains  the  error  which  caused  the 
abandonment  of  the  rule  laid  down  in  the  New  York  cases  ; 
and  omits  the  redeeming  feature,  which  enabled  it  long  to 
hold  its  own,  and  which  the  Massachusetts  cases  retain 
and  amplify  as  indispensable  to  its  operation.  (?')  If  this 
decision  is  law  it  is  difficult  to  see  why,  if  the  third  person 
is  also  debtor  to  the  promisor,  any  thing  which  tends  to 
improve  his  credit  or  his  ability  to  pay  the  promisor,  will 
not  take  a  promise  to  pay  his  debt  out  of  the  statute, 
whether  the  promise  related  to  an  antecedent  debt,  or  one 
then  newly  contracted,  {j ) 

%  Q21.  The  next  case  which,  although  more  startling  in 
its  results,  is  more  defensible  in  principle,  because  at  least 
the  defendant  acquired  what  the  plaintiff  gave,  is  Kutz- 
Tneyer  v.  Ennis,  3  Dutcher  (New  Jersey),  371,  A.  D.  1859. 
There  the  first  count  of  the  declaration  stated  that  the 
defendant  had  made  a  written  contract  with  Riley  and 
Goodwin,  to  construct  certain  buildings  for  him  at  a  stipu- 

(i)  The  error  lies  in  the  supposition  that  harm  to  the  promisee  will  affect 
the  question  under  the  statute.  It  is  believed  that  this  proposition  always 
involves  a  fallacy ;  it  certainly  does  so  in  a  case  like  this,  otherwise  a  promise 
based  upon  forbearance  or  the  surrender  of  a  security  to  the  debtor,  would 
be  amply  within  the  principle.  The  redeeming  feature,  upon  which  the  dis- 
tinguished judge,  whoso  strenuously  defended  this  rule  in  Mallory  v.  Grillett, 
wholly  based  his  defence  of  it,  was  that  it  required  the  consideration  to  move 
to  the  promisor.  This  the  Massachusetts  cases  amplify,  by  saying  that  the 
benefit  to  the  promisor  must  be  one  '^accruing  immediately  to  himself;"  but  in 
Emerson  v.  Slater  the  opinion  entirely  omits  this  vital  qualification.  And 
evidently  this  was  not  done  by  accident,  or  because  it  was  supposed  to  be 
included  in  the  phrase  that  the  leading  purpose  of  the  promisor  was  to  ben- 
efit himself;  for  a  careful  examination  of  the  case  will  show  that  no  consider- 
ation moved  fr-om  the  promisee  to  the  promisor  either  directly  or  i7idirecily.  The 
original  debtor  acquired  all  that  the  plaintiff  gave  ;  the  consideration  there- 
fore moved  to  him  exclusively ;  and  the  benefit  which  the  defendant  expected 
to  derive  from  the  transaction,  remote,  indirect,  and  uncertain  as  it  was, 
would  come  from  the  debtor  and  not  from  the  plaintiff. 

{j)  There  is  considerable  similarity  between  the  facts  of  this  case  and 
those  in  Mallett  v.  Bateman,  ante,  §  212,  where  the  Exchequer  Chamber  ruled 
the  law  precisely  the  other  way. 


Art.  II.]  Collateral  Undertakings.  625 

lated  price  ;  tliat  the  plaintiff  had  worked  on  the  build- 
ings, at  the  request  of  the  contractors,  and  upon  a  written 
agreement  with  one  of  them ;  that  they  having  failed  to 
pay  the  plaintiff,  he  gave  notice  in  writing  to  the  defendant 
under  the  lien  law,  that  a  certain  amount  was  "due  from 
the  contractors,"  and  requiring  the  defendant  to  retain 
that  amount;  and  thereupon  it  was  averred  that  he  be- 
came liable  to  pay  the  plaintiff  under  the  lien  law.  The 
second  count  was  indebitatus  assumpsit  for  work  and 
labor.  The  defendant  had  judgment  in  the  court  below, 
upon  demurrer  to  the  first  count ;  the  cause  was  then 
tried  upon  a  plea  of  the  general  issue  to  the  second 
count ;  and  the  plaintiff  having  had  a  verdict  and  judg- 
ment, the  defendant  brought  error.  It  appeared  from  the 
bill  of  exceptions,  that  the  defendant  made  an  express 
verbal  promise  to  pay  for  the  work,  and  (either  by  offers 
of  evidence  which  were  rejected  or  by  express  proof,) 
that  the  work  was  done  at  the  request  of  the  contract- 
ors, and  under  a  written  agreement  with  Eiley ;  that 
Riley  and  Goodwin  had  recovered  judgment  against  the 
defendant  for  the  same  work  for  w^hich  this  action  was 
brought,  and  that  the  defendant  had  paid  the  judgment ; 
that  the  judgment  in  their  favor  was  recovered  after  a 
trial,  upon  which  the  plaintiff  testified  that  ' '  the  work 
was  done  by  the  contractors  for  Kutzmeyer"  (the  defend- 
ant) ;  and  that  after  the  work  had  been  completed,  the 
plaintiff  had  given  the  notice  and  taken  the  proceedings 
under  the  lien  law,  as  set  forth  in  the  first  count  of  his 
declaration.  Nevertheless  the  Supreme  Court  afiirmed 
the  judgment,  stating  the  principle  under  examination  in 
language  essentially  different  from  that  contained  in  tlie 
opinion  in  the  former  case,  and  holding,  upon  their  method 
of  stating  it,  that  it  took  the  defendant's  promise  out  of 
the  statute.  The  court  added,  (what  under  the  circum- 
stances would  almost  seem  to  be  ironical,)  that  the  defend- 
ant might  have  retained  the  amount  due  to  the  plaintiff, 
from  the  moneys  paid  to  the  contractors.  The  facts  of  this 
case  show  very  clearly  that  both  parties  understood,  that 
the  leading  object  of  the  promise  was  to  guaranty  the  debt 
79 


626  Collateral  Undertakings.        [Ch.  xvii. 

of  the  contractors  ;  and,  as  tlie  court  stated  the  rule,  that 
circumstance  would  appear  to  be  of  no  consequence.  {Jc) 

§  628.  Not  only  do  these  two  cases  disagree  fundament- 
ally as  to  the  terms  of  the  rule,  by  which  both  profess  to 
be  governed ;  (and  each  states  it  in  a  form  less  defensi- 
ble than  that  which  we  have  given  to  it ;)  but  they  are 
also  directly  at  war  with  numerous  other  decisions,  in 
cases  where  the  plaintiff  held  a  subcontract  to  do  part  of 
a  work,  which  the  third  person  had  contracted  to  do  for 


(k)  The  opinion,  delivered  by  Green,  C.  J.,  after  saying  tliat  as  the  work 
was  done  upon  the  express  promise  of  the  defendant  to  pay  for  it,  it  was 
immaterial  whether  Riley  and  Goodwin  had  recovered  judgment  for  it 
against  the  defendant,  or  had  received  the  price,  proceeded  to  consider  the 
effect  of  the  lien  notice,  the  plaintiff's  evidence  on  the  former  trial,  the 
special  count  of  the  declaration,  and  the  contract  between  the  plaintiff  and 
Riley;  all  of  which,  it  was  said,  showed  clearly  that  the  plaintiff  understood 
that  he  originally  gave  credit  to  the  contractors,  and  not  to  the  defend- 
ant. "But,"  it  was  added,  "the  question  is  not  to  whom  the  credit  was 
originally  given,  but  whether  Kutzmeyer"  (the  defendant  below)  "did  not 
afterwards  assume  the  liability."  Then  the  learned  Chief  Justice  proceeded 
to  consider  the  exception  to  the  refusal  of  the  judge  at  the  trial,  to  charge 
that,  as  the  work  was  done  under  the  contract  between  the  plaintiff  and 
Riley,  any  promise  by  the  defendant  to  pay  for  the  same  should  have  beeu 
in  wiiting;  respecting  which  he  said:  "The  court  was  right  in  refusing 
to  charge  as  requested,  though  the  reason  assigned  for  the  decision  may 
not  be  valid.  The  real  ground  on  which  the  decision  stands  is  that  the 
promise  is  not  within  the  statute  of  frauds.  The  rule  is  that  where  the 
promise  to  pay  the  debt  of  another  is  founded  upon  a  new  consideration,  and 
this  consideration  passed  between  the  parties  to  the  promise,  and  gives  to 
the  promisor  a  benefit  which  he  did  not  enjoy  before,  and  would  not  have 
possessed  but  for  the  promise,  then  it  will  be  regarded  as  an  original  promise, 
and  ihe-refore  will  be  enforced,  though  not  in  writing.  1  Parsons  on  Con., 
498.  This  is  the  precise  position  of  the  parties  in  this  case.  The  evidence 
tends  to  show,  and,  if  the  jury  believed  the  plaintiff's  witnesses,  does  show, 
that  though  the  woik  was  originally  undertaken  by  Ennis  at  the  instance  of 
the  contractors,  yet  he  refused  to  proceed  and  the  work  was  stopped,  until 
Kutzuieyer  promised  payment.  The  work  was  not  done  for  a  third  party, 
but  for  Kutzmeyer  himself.  He  was  interested  in  the  completion  of  the 
work.  He  received  the  benefit  of  it,  and  he  had  in  it  his  power  to  indem- 
nify himself  for  the  advance  to  Ennis,  by  withholding  the  money  from  the 
contractors." 


Art.  II.]  Collateral  Undertakings.  627 

the  defendant ;  and  tlie  plaintiff  refused  to  go  on  with  his 
work,  until  the  defendant  promised  to  pay  him.  In  such 
cases  it  has  been  repeatedly  hold  that  the  promise  was 
without  the  statute,  only  when  it  appears  that  the  plaintiff 
had  discharged  the  third  person ;  although  the  per- 
formance of  the  work  may  have  enured  to  the  benefit  of 
the  defendant.  (Z)  Those  decisions  are  therefore  direct 
authorities  against  the  ruling  in  Emerson  v.  Slater  and 
Kutzmeyer  v,  Ennis,  and  against  the  whole  doctrine  that 
a  benefit  to  the  promisor  will  take  the  promise  out  of  the 
statute,  in  whatever  form  it  may  be  stated. 

§  629.  The  next  class  of  cases  where  the  general  propo- 
sition under  examination  is  asserted  to  be  law,  consists  of 
those  where  it  was  assigned,  as  a  reason  for  taking  out 
of  the  statute  the  promise  upon  which  the  question  arose ; 
but  either  the  circumstances  did  not  require  the  invocation 
of  its  aid,  because  the  case  properly  depended  upon  some 
rule  having  no  relation  to  it ;  or  else  the  case  came  within 
one  of  the  specific  classes  governed  by  well  defined  rules, 
forming  corollaries  of  the  principle,  that  where  the  promise 
is  substantially  to  pay  the  debt  of  promisor  it  is  not  within 


(0  See  chapter  ix,  article  iii,  and  the  following  cases:  Puckett  v.  Bates, 
4  Alabama,  390 ;  Ellison  v.  Jackson,  etc.,  Company,  12  Calirorniii,  542  ;  Noyes 
V.  Humphreys,  11  Grattan  (Virginin).  636;  Warnick  v.  Gro;-holz,  3  Grant's 
Cases  (Pennsylvania),  234;  Andre  v.  Bodman,  13  Maryland,  241  ;  Bresler  v. 
Pendell.  12  Michigan,  224;  Sinclair  v.  Richardson,  12  Vermont,  33;  King  v. 
Despard,  5  Wendell  (New  York),  277.  But  see  Devlin  v.  Woodgate,  34 
Barbour  (New  York),  252  contra.  It  is  said  in  1  Smith's  Leading  Cases,  6th 
American  edition,  489,  that  the  reason  why  the  principle  under  examination 
will  not  suffice  to  save  a  verbal  promise,  in  this  class  of  cases,  is  "  because 
the  benefit,  though  real,  is  not,  under  these  circumstances,  sufficiently  certain 
to  constitute  a  hgal  considei-ation."  In  a  recent  case  presenting,  upon  one 
hypothesis,  the  question  how  far  this  principle  will  control  the  application  of 
the  third  ruje;  and,  upon  another,  a  question  very  analogous  to  tiiat  which 
which  .irose  in  the  cases  just  cited,  the  court  was  driven  to  a  very  fine  spun 
line  of  argument,  to  escape  the  alternative,  of  holding  the  defendant  to  be 
liable,  on  the  ground  that  the  leading  object  of  the  promisor  was  to  benefit 
himself,  or  of  overruling  altogether  the  principle.  See  Clay  v.  Walton,  9 
California,  328;  post,  §  641. 


628  Collateral  Undertakings.        [Ch.  xvii. 

the  statute.  As  we  have  already  said,  whenever  this  prop- 
osition means  notliing  more  than  that  principle,  it  is  open 
to  no  objection  as  a  rule  of  law. 

§  630.  Among  the  cases  of  this  description,  Alger  v. 
Scoville,  67  Massachusetts  (1  G-ray),  391,  A.  D.  1854,  is  the 
most  conspicuous,  (w)  There,  as  we  have  already  said,  it 
was  held  that  a  promise  to  indemnify  the  plaintiff,  against 
his  accommodation  indorsements  of  outstanding  notes  of  a 
corporation,  made  in  consideration  of  the  transfer  of  the 
plaintiff' s  stock  in  the  corporation,  and  a  note  against  it, 
held  by  the  plaintiff,  was  not  within  the  statute,  because 
it  was  not  made  to  the  creditor.  But  the  court  also  added, 
that  if  the  promise  could  be  regarded  as  being  to  answer 
for  the  default  of  the  company,  it  was  not  within  the  statute, 
because  "when  the  leading  and  obvious  object  of  the 
promisor  was  to  induce  the  promisee  to  forego  some  lien, 
interest,  benefit,  or  advantage  held  by  him,  and  to  transfer 
that  interest,  or  confer  that  or  some  equivalent  benefit  on 
the  promisor,although  the  effect  may  be  to  discharge  another 
person  from  an  obligation,  still  it  is  a  new,  independent  and 
original  contract  between  the  parties,  and  is  not  within  the 
statute  of  frauds  required  to  be  in  writing."  It  was 
further  said  that  the  substance  of  the  transaction  was  that 
the  plaintiff  placed  in  the  defendant's  hands  the  funds, 
out  of  which  the  notes  would,  in  due  course  of  business, 
be  paid.  But  the  case  is  now  universally  regarded  as  an 
authority  upon  the  first  point  decided,  which  is  a  well 
settled  principle  of  law,  as  we  have  already  seen.(?z-) 

§  631.  The  same  general  observation  will  apply  to  Small 
V.  Schaefer,  24  Maryland,  143  ;(o)  Mason  v.  Hall,  30  Ala- 
bama, 599  ;(^)  Spawn  v.  Baltzell,  1  Florida,  301  \{q)  Jepher- 
son  V.  Hunt,  84  Massachusetts  (2  Allen),  417,(r)  and 
numerous  other  cases,  where  this  proposition  was  assigned 

(?n)  Cited  also  ante,  §  376. 

(n)  Chapter  xi.  The  case  is  so  treated  in  Furbish  v  Groodnow,  98  Massa- 
chusetts, 206. 

(o)  Ante,  §  413.  {q)  Ante,  §  494. 

(p)  Ante,  §  416,  (r)  Ante,  §  136. 


Art.  II.]  Collateral  Undertakings.  629 

quite  unnecessarily  as  one  of  the  grounds  of  the  decision, 
the  statute  being  clearly  inapplicable  under  some  other 
well  settled  principle. 

§  632.  Cases  of  the  other  kind,  namely,  where  this 
proposition  was  assigned,  in  general  tenns,  as  the  ground 
for  taking  the  promise  out  of  the  statute,  but  in  reality 
the  facts  called  for  the  application  of  some  specific  princi- 
ple, derived  from  the  general  rule  that  a  promise  to  pay 
the  promisor' s  own  debt  is  not  within  the  statute,  are  even 
of  less  authority  to  support  this  proposition,  as  a  rule  of 
universal  application ;  because  our  argument  is  that  it 
is  true  in  all  such  instances  and  no  other.  Many  such 
cases  have  been  cited  in  previous  pages,  under  the  spe- 
cific principles  to  which  they  respectively  belongs  Among 
them  Reed  v.  Holcomb^  31  Connecticut,  360,  decided 
A.  D.  1863,(5)  is  quite  noteworthy,  as  showing  the  tendency 
of  this  doctrine  to  swallow  up  all  other  principles,  by 
which  the  application  of  the  statute  is  regulated,  and  to 
introduce  vagueness  and  confusion  into  this  branch  of  the 
law.  There,  as  we  have  seen,  the  court  was  required  to 
pass  upon  the  question,  whether  a  promise  to  indemnify 
the  plaintiff  for  indorsing  a  third  person's  note  at  the 
request  and  for  the  benefit  of  the  defendant,  which  the 
defendant  himself  subsequently  indorsed,  was  within  the 
statute.  But  it  was  held  that  the  statute  did  not  apply, 
for  a  reason  embodying  the  proposition  now  under  dis- 
cussion, in  one  of  its  protean  forms. 

§  633.  Another  case,  illustrating  the  same  tendency, 
which  has  not  yet  been  cited,  is  Lemmon  v.  Box,  20  Texas, 
329,  A.  D.  1857.  There  the  question  was  whether  a  plea 
of  set-off  could  be  sustained  ;  the  allegation  being  that  the 
plaintiff  requested  the  defendant  to  procure  a  note  from 
C.  and  E.  Carpenter  for  a  specified  sum,  and  an  order  upon 
him  to  accept  the  note  as  cash  ;  and  promised  the  defend- 
ant that  if  he  would  do  so,  he  would  pay  the  amount ;  and 

(5)  Ante,  §  467. 


630  COLLATEKAL   UNDERTAKINGS.  [Ch.  XVII, 

that  after  tlie  order  and  note  had  been  obtained,  he  repeated 
his  promise.  The  court  held  that  the  amount  of  the  note 
and  order  could  be  properly  offset  against  the  plaintiff' s 
demand,  on  the  ground  that  the  plaintiff's  leading  object 
was  to  subserve  some  purpose  of  his  own  ;  and  although 
the  transactions  or  dealings  between  the  plaintiff  and  the 
Carpenters  were  not  stated,  ' '  the  manifest  inference ' '  was 
that  he  owed  the  Carpenters  money;  and  "apparently" 
he  thought  this  the  most  convenient  way  in  which  he  could 
pay  his  debt;  and  that,  "for  aught  that  appears,"  there 
was  no  original  indebtedness  on  the  part  of  the  Carpenters 
to  the  defendant ;  but ' '  he  may  have  purchased  their  claim 
against  the  plaintiff. "  So  a  judgment  for  the  plaintiff  was 
reversed,  because  the  plea  of  set-off  was  ruled  out.  Upon 
the  facts  aissumed  by  the  court  to  exist,  the  promise  was 
to  pay  the  promisor's  pre-existing  debt  to  a  transferee 
thereof. 

§  634.  It  is  somewhat  remarkable,  that  the  cases  of 
this  description,  where  we  should  find  the  greatest  dif- 
ficulty in  showing,  that  although  this  general  proposition 
was  stated  as  the  ground  of  the  decision,  the  result  was 
really  controlled  by  the  application  of  one  of  the  specific 
propositions  to  which  we  have  referred,  have  arisen  in 
Pennsylvania  and  Vermont,  where  the  general  proposition 
has  since  been  so  emphatically  repudiated ;  and  the 
same  court  which  decided  the  doubtful  case,  has  by  a 
subsequent  construction  of  it,  avoided  the  doubts  which 
might  otherwise  arise,  whether  it  could  be  accommodated 
to  our  theory. 

§  635.  In  Arnold  v.  Stedman,  45  Pennsylvania,  186, 
decided  A.  D.  1863,  the  defendant  had  agreed  to  sell  certain 
real  estate  to  one  Barrett,  for  a  sum  payable  in  instalments  ; 
and  the  contract  contained  a  clause  by  which  Barrett 
agreed  to  surrender  possession  of  the  property,  upon  the 
first  instalment  remaining  unpaid.  Barrett  took  pos- 
session, and  before  the  first  instalment  became  payable, 
the  plaintiff,  under  a  contract  with  him,  built  a  barn  on 


Art.  II.]  Collateral  Undertakings.  631 

the  premises.  The  first  instalment  not  having  been  paid, 
the  defendant  commenced  an  action  of  ejectment  against 
Barrett;  pending  which  the  plaintiff  filed  a  mechanic's 
lien  against  the  property,  for  the  amount  remaining  unpaid 
upon  his  contract  with  Barrett ;  and  subsequently  the 
defendant,  in  consideration  that  the  plaintiff  would  stay 
his  proceedings,  promised  to  pay  him  his  debt,  when  the 
property  should  come  back  to  the  defendant,  in  conse- 
quence of  the  ejectment  suit.  At  a  still  later  date  the 
defendant  recovered  the  possession  of  the  property.  A 
judgment  for  the  plaintiff  was  affirmed  by  the  Supreme 
Court.  It  was  held  that  the  promise  was  not  within  the 
statute  on  the  ground  that  it  was  a  new  and  original  con- 
tract, founded  upon  a  new  and  fresh  consideration  between 
the  parties  to  this  suit ;  and  that  the  defendant's  object  was 
not  to  answer  for  the  debt  of  Barrett,  but  to  subserve  a 
purpose  of  his  owm.  But  the  subsequent  case  of  Maule 
V.  BucTinelly  50  Pennyslvania,  39,  explains  this  case  as 
having  proceeded  upon  the  ground  that  the  promisor's 
property  was  liable  for  the  debt,  independently  of  his 
promise  to  pay  it. 

§  636.  In  Lampson  v.  Hobart,  28  Vermont,  697,  A.  D. 
1856,  and  also  in  Cross  v.  Richardson^  30  Vermont,  641, 
A.  D.  1858,  it  would  have  been  difiicult  to  say  that  any 
specific  rule,  as  distinguished  from  the  general  proposition, 
controlled  the  result,  had  not  the  court  itself  subsequently 
surmounted  the  difficulty.  It  is  unnecessary  to  recapitu- 
late these  cases  in  detail ;  for  in  Fiillam  v.  Adams,  37 
Vermont,  391,  they  were  authoritatively  explained,  as 
having  proceeded  upon  the  ground  that  the  promisee  sur- 
rendered to  the  promisor  a  security  or  lien  u])on  ])roperty  ; 
notwithstanding  that  in  each  of  them  the  ))roa(l  proposi- 
tion under  discussion  was  assigned,  in  one  of  its  varied 
forms,  as  a  reason  for  the  decision.  And  it  is  not  easy  to  see 
what  security  the  plaintiff  in  the  first  cause  had  o])tained.(^) 

(i)  Bat  it  was  also  intimated  that  Lampson  v.  Hobart  was  erroneously 
decided ;  and  with  this  conclusion  we  agree.  It  is  in  direct  conflict  with 
Waldo  V.  Simonson,  18  Michigan,  345,  A.  D.  18G9,  published  while  this 
volume  was  passing  through  the  press. 


632  Collateral  Undertakings.        [Ch.  xvii. 

§  637.  The  case  of  Templetons  v.  Bascom,  33  Vermont, 
132,  A.  D.  lSQO,{u)  although  quite  recent,  has  provoked 
considerable  discussion,  which  is  put  at  rest  by  the  sub- 
sequent authoritative  explanation  of  it.  There  it  appeared 
that  the  plaintiffs  were  creditors  of  the  father  of  the  de- 
fendant who  had  died  intestate,  leaving  a  considerable 
estate ;  that  the  defendant  was  his  only  child  and  enti- 
tled to  all  the  estate  after  payment  of  the  debts ;  that 
immediately  after  the  death  of  his  father,  the  defendant 
entered  into  possession  of  the  estate ;  and  afterwards,  in 
consideration  that  the  plaintiffs  would  not  present  their 
claim  to  the  commissioners  upon  the  estate,  appointed  by 
the  probate  court,  or  take  the  necessary  legal  steps  to  have 
it  chargeable  upon  the  estate,  the  defendant  repeatedly 
promised  to  pay  them  the  amount.  The  first  promise 
was  made  shortly  after  the  death  of  the  father;  subse- 
quently the  defendant  was  appointed  administrator,  and 
the  promise  was  repeated  several  times  after  he  was  so 
appointed.  It  further  appeared,  that  the  delay  in  present- 
ing the  claim  had  caused  the  plaintiffs  to  lose  their 
remedy  against  the  estate,  as  the  commissioners  had 
reported,  and  the  report  had  been  confirmed.  Here  was, 
at  first  sight,  as  far  as  the  application  of  this  clause  of  the 
statute  was  involved,  the  ordinary  case  of  a  consideration 
resting  in  forbearance  merely ;  which  had  incidentally,  and 
not  as  a  part  of  the  original  agreement,  caused  the  loss  of 
the  debt.  But  the  Supreme  Court  affirmed  a  judgment  of 
the  County  Court  in  favor  of  the  plaintiffs. 

§  638.  Kellogg,  J.,  delivering  the  opinion  of  the  court, 
said  that  on  the  neglect  of  the  defendant  to  take  adminis- 
tration, the  plaintiff's,  as  creditors,  might  have  done  so ;  and 
the  expense  of  such  administration,  and  of  proceedings 
before  the  commissioners  to  prove  the  debt,  would  have 
lessened  the  amount  of  the  estate,  which  the  defendant 
had  a  direct  interest  in  preventing.  He  added :  '■'■In  mew 
of  the  interest  wMcli  the  defendant  had  in  that  estate, 

(«)  Cited  also,  and  commented  upon  in  note  to  §  15,  ante. 


Art.  11.]  Collateral  Undertakings.  633 

such  forbearance,  or  the  agreement  for  it  on  tlie  part  of  the 
plaintiffs,  at  the  request  of  the  defendant,  ought  to  be 
regarded  as  a  sufficient  consideration  for  the  defendant' s 
promise  to  pay  the  debt."  "Tlie  consideration  of  the 
promise  of  the  defendant  was  the  waiving  by  the  plaintiffs 
of  their  remedy  against  the  estate  of  the  defendant's 
father  —  a  remedy  to  which  they  had  an  undoubtf^d 
right,  — for  the  benefit  of  the  defendant,  and  at  his  request. 
His  promise  to  pay  the  debt  to  the  plaintiffs  was  founded, 
not  on  the  consideration  of  the  original  debt,  but  on  a  new 
consideration  distinct  from  it,  moving  from  the  plaintiffs 
directly  to  himself,  the  entire  benefit  of  tohich  icas  antici- 
pated or  received  by  him.  It  is  therefore  to  be  regarded, 
not  as  collateral  to  the  original  debt,  but  as  an  original 
and  independent  undertaking."  In  Fullam  v,  Adams ^ 
37  Vermont,  391,  the  Chief  Justice,  after  saying  that  in 
this  case  all  the  property  was  in  the  defendant's  hands  ; 
added  that  "the  plaintiffs  not  only  relinquished  his" 
(their)  "right  in  favor  of  the  defendant  to  the  funds  in 
his  hands,  to  which  he"  (they)  "had  the  right  to  look 
for  payment,  but  his ' '  (their)  ' '  omission  to  proceed  against 
them,  operated  as  a  discharge  of  the  debt  itself." 

§  639.  The  list  of  cases  of  this  character  is  by  no  means 
exhausted ;  but  we  believe  that  we  have  cited  those  where 
the  general  proposition  under  examination  was  laid  down, 
under  circumstances  raising  the  strongest  argument  in  its 
favor. 

§  640.  To  glance  briefly  at  another  description  of  cases. 
There  are  some  where,  although  the  consideration  moved 
to  the  promisor,  and  the  leading  object  of  the  transaction 
was  to  subserve  some  purpose  of  his  own,  it  was  held  that 
the  promise  was  within  the  statute,  because  the  object  to 
be  accomplished  by  the  promisor  did  not  appear  to  be 
sufficiently  beneficial  to  him,  to  satisfy  the  supposed  rule. 
And  it  has  been  suggested,  that  in  all  the  cases  where  the 
third  person  had  undertaken  the  fulfilment  of  a  contract 
with  the  defendant,  contemplating  an  improvement  of  the 
80 


634  Collateral  Undertakings.        [Ch.  xvii. 

defendant's  property,  and  had  sublet  a  portion  of  it  to 
the  plaintiff,  who  refused  to  proceed  with  the  work, 
till  the  defendant  agreed  to  pay  him ;  the  true  reason 
why  the  defendant's  promise  is  within  the  statute  unless 
the  original  contractor  has  been  discharged,  is  that  the 
benefit  to  the  defendant  is  not  sufSciently  certain.  (?)) 
With  great  deference  to  the  distinguished  jurists  who 
have  advanced  this  idea,  it  appears  to  be  merely  an  attempt 
to  neutralize  the  mischievous  consequences  of  the  vague- 
ness of  this  proposition,  by  the  introduction  of  another 
proposition  equally  vague,  tending  in  the  contrary  direc- 
tion. The  cases  to  which  we  refer,  strikingly  illustrate 
our  position,  that  the  doctrine  that  a  promise  is  without 
the  statute,  when  the  leading  object  is  to  subserve  some 
purpose  of  the  promisor,  cannot  be  sustained  in  its  broad 
acceptation ;  and  the  attempt  to  limit  it  in  this  manner, 
will,  it  is  believed,  only  increase  the  confusion. 

§  641.  Thus  in  Clay  v.  Walton,  9  California,  328,  A.  D. 
1858,  the  question  was  whether  the  defendant  was  liable 
upon  a  verbal  promise,  to  become  responsible  for  brick 
sold  to  one  Williams,  to  enable  him  to  complete  a  contract 
with  the  defendant  for  the  erection  of  the  defendant's 
house.  The  plaintiffs  had  judgment,  and  an  order  grant- 
ing a  new  trial  was  affirmed  on  appeal.  On  the  part  of 
the  plaintiffs,  several  points  were  taken,  and  among  others, 
the  argument  was  pressed  upon  the  court,  that  the  leading 
object  of  the  promisor  was  to  subserve  his  own  interests  ; 
but  the  court  held  that  the  plaintiff  was  not  entitled  to 
recover.  Field,  J. ,  upon  this  point,  said :  ' '  The  correctness 
of  the  general  rule  is  unquestionable,  but  it  is  difficult  to 
see  its  application  to  the  present  case.  There  is  no  evi- 
dence that  the  building  could  not  have  been  erected,  and 
the  requisite  brick  obtained  by  the  contractor,  if  the 
defendant  had  made  no  promise ;  or  that  brick  equally 
good  could  not  have  been  obtained  elsewhere  ;  or  that  it 
was  of  any  particular  benefit  to  the  defendant,  that  the 

iv)  See  note  to  §  628,  ante. 


Art.  II.]  Collateral  Undertakings.  635 

contract  with  Williams  should  have  been  carried  out  at 
all ;  and  even  had  circumstances  of  this  nature  appeared 
in  the  case,  the  question  would  still  have  arisen,  as  to 
what  was  the  leading  object  and  purpose  of  the  promise. 
The  interest  which  a  promisor  has  in  the  performance  of 
a  contract  by  another,  or  the  benefit  which  he  may  derive 
thereby,  cannot  determine  his  liability.  That  liability 
arises  from  the  character  of  the  promise,  and  the  interest 
in  the  principal  contract,  or  the  benefit  to  be  gained  by  its 
performance,  become  matters  of  consideration,  only  as 
they  may  serve  to  determine  that  character." 

§  642.  The  decision  in  the  recent  case  of  Pfeiffer  v. 
Adler,  37  New  York,  164,  A.  D.  1867,  also  proceeded  on 
the  ground  of  the  lack  of  sufficient  benefit  to  the  promisor 
to  sustain  the  promise.  There  the  action  was  upon  a  ver- 
bal promise  of  the  defendant,  a  widow,  to  pay  a  debt  due 
from  her  deceased  husband  to  tlie  plaintiffs ;  and  the  con- 
sideration is  stated  in  the  report  to  have  been,  that  the 
plaintiffs  "promised  to  sell  goods  on  credit  to  her,  to  en- 
able her  to  carry  on  business,  and  to  assist  her  in  settling 
with  other  creditors  of  her  husband ;  and  these  promises 
they  fulfilled."  It  is  not  stated  whether  he  left  a  will  or 
assets,  and  apparently  there  was  no  evidence  on  the  latter 
point.  The  cause  was  tried  before  a  referee,  who  dismissed 
the  complaint.  The  judgment  entered  upon  his  report  was 
affirmed  by  the  Supreme  Court,  and  the  plaintiff  appealed 
to  the  Court  of  Appeals  ;  where  the  judgment  was  again 
affirmed. 

§  643.  Porter,  J.,  delivering  the  prevailing  opinion,  said: 
"It  does  not  appear  that  the  husband  left  any  property,  or 
that  the  widow  had  any  interest  to  subserve  by  assuming 
the  payment  of  his  debts.  She  was  under  no  obligation  to 
the  plaintiffs,  unless  one  was  created  by  her  unwritten  prom- 
ise to  pay  what  she  did  not  owe.  The  original  demand 
was  not  extinguished  by  the  arrangement,  and  there  was 
no  such  new  consideration  as  would  suffice  to  take  the 
case  out  of  the  statute  of  frauds.    The  settlements  which 


636  Collateral  Undertakings.        [Ch.  xvii. 

the  plaintiffs  were  to  aid  her  in  negotiating  were  of  the  debts 
of  another,  for  which  she  was  not  liable,  and  in  which  she 
had  no  personal  concern.  She  was  evidently  in  good 
credit,  for  the  appellants  were  willing  to  trust  her  for  the 
amount  of  her  husband' s  debt,  and  for  all  she  was  willing 
to  purchase.  A  verbal  promise  to  sell  goods  to  a  respon- 
sible party,  for  their  full  value,  and  on  the  usual  terms, 
forms  no  consideration  for  an  independent  engagement  to 
pay  the  antecedent  debt  of  a  third  person.  (?c)  There  is 
nothing  in  the  facts  found  by  the  referee,  to  withdraw  the 
agreement  from  the  operation  of  the  statute  of  frauds." 

§  644.  So  in  Osborne  v.  The  Farmers  Loan  and  Trust 
Company,  16  Wisconsin,  35,  A.  D.  1862.  There  the  de- 
fendant had  received  from  a  railroad  company  a  deed  of 
surrender  of  its  road,  equipment  and  franchises,  in  trust  to 
pay  off  certain  debts  and  incumbrances  ;  and  the  complaint 
alleged  that  afterwards  the  defendant  undertook  to  pay  a 
debt  of  the  company  due  to  the  plaintiff,  (not  provided  for 
in  the  deed,)  in  consideration  that  the  plaintiff  would  pro- 
cure the  passage  of  a  resolution  by  the  directors  of  the  com- 
pany " recommending  and  instructing  the  defendant"  to 
make  such  payment ;  which  he  had  procured  to  be  done  at 
much  labor  and  expense.  At  the  trial  the  plaintiff  having 
proved  the  terms  of  the  deed  of  surrender,  and  that  the  de- 
fendant had  since  received  from  the  revenues  of  the  road,  an 
amount  equal  to  the  debt  of  the  company  to  the  plaintiff ; 
offered  to  prove  the  promise  by  oral  testimony,  which  was 
excluded  on  the  ground  that  it  was  within  the  statute.  The 
defendant  having  had  a  verdict,  the  judgment  thereon  was 
affirmed  on  appeal.  The  argument  of  the  plaintiff' s  coun- 
sel was  to  the  effect  that  the  plaintiff  insisted  that  the 
defendant  was  liable  to  pay  the  debt ;  and  that  his  pro- 
curing the  resolution  to  be  passed  avoided  a  law  suit ; 
that  the  resolution  recognized  the  legality  of  the  defend- 
ant' s  possession  of  the  road ;  and  that  it  might,  by  way 

{lu)  This  proposition  of  the  learned  judge  seems  to  conflict  with  the  under- 
Btanding  of  the  court  and  counsel,  in  Wheeler  v.  Collier,  Croke  Elizabeth,  406. 


Art.  II.]  Collateral  Undertakings.  637 

of  estoppel,  legalize  other  payments  of  tlie  same  charac- 
ter theretofore  made  by  the  defendant.  But  the  court 
said:  "The  respondent  was  not  benefited  by  the  passage 
of  the  resolution  by  the  directors,  as  we  can  see.  It 
is  claimed  that  it  might  be  benelicial  to  the  respondent 
because  it  would  be  a  recognition  by  the  directors  of  its 
right  to  the  possession  of  the  road.  But  the  respondent 
had  already  acquired  this  possession  by  the  deed  of  sur- 
render. The  suggestion  that  the  resolution  could  possibly 
benefit  the  respondent  in  any  manner  must  be  disre- 
garded." (^) 

§  645.  The  case  of  Reynolds  v.  Carpenter,  3  Chandler 
(Wisconsin),  31,  A.  D.  1850,  doubtless  proceeded  upon  a 
similar  ground,  although  the  consideration  did  not  move 
from  the  plaintiff  but  from  the  debtor.  The  action  was  to 
recover  upon  a  verbal  promise  of  the  defendant  to  pay  the 
board  bills  of  various  persons  ;  and  it  appeared  that  the 
defendant  was  engaged  in  the  construction  of  a  canal,  and 
in  consideration  that  the  debtors  would  go  to  work  for  the 
defendant,  he  undertook  w^ith  the  plaintiff  to  pay  the  bills  in 
question.  The  plaintiff  having  recovered  in  the  court  below, 
the  judgment  was  reversed  on  appeal ;  the  court  merely  say- 
ing that  there  could  be  no  doubt  that  the  case  was  within 
the  statute  of  frauds,  without  discussing  the  question. 

§  646.  It  will  be  noticed  that  these  cases  were  precisely 
of  that  class,  where  the  general  principle  that  the  statute 
does  not  apply  to  a  promise  to  pay  the  promisor  s  debt, 
would  not  operate.  The  first  three  effectually  dispose  of 
the  theory,  that  harm  to  the  promisee  will  take  the  promise 
out  of  the  statute.  But  it  is  difficult  to  state  any  ground 
upon  which  a  court  can  undertake  to  gauge  the  amount  of 

(.r)  See  aUo  Brown  v.  Barnes,  6  Alabama,  G94,  A.  D.  1844,  where  it  was 
held  tliat  a  promise  by  a  person  who  had  the  custody  of  the  esta'e  and 
management  of  the  affair?  of  a  debtor,  that  he  would  pay  the  debt,  in  n  n- 
sideration  that  the  |i!  liii  flf  would  state  the  items  of  his  account,  swear 
to  their  correctness  before  the  mayor  of  Philadelphia,  and  procure  his  offi- 
cial certificate  thereof,  was  within  the  statute,  because  the  consideration  was 
not  beneficial  to  the  defcudaut. 


638  COLLATEEAL  UNDERTAKINGS.  [Ch.  XVII. 

benefit,  which  an  adult  promisor  of  sound  mind  will  receive 
from  the  consideration  of  a  contract  entered  into  by  him, 
when  it  moves  directly  from  the  other  party  to  him,  and  at 
his  request.  He  is  upon  every  principle  the  sole  and  final 
judge  of  that  benefit.  We  therefore  regard  these  cases  as 
practically  demonstrating  the  unsoundness  of  the  sup- 
posed rule,  which  requires  such  violations  of  approved 
legal  principles  to  reconcile  it  with  the  statute. 

§  647.  To  sum  up  the  results  of  this  investigation.  The 
advocates  of  the  supposed  rule  do  not  agree  upon  its 
terms  ;  all  of  them  define  it  in  very  vague  and  elastic  lan- 
guage ;  most  of  them  in  terms,  which  would  include  nearly 
every  promise  to  pay  another' s  precedent  debt  upon  a  new 
consideration,  and  introduce  confusion  into  all  the  prin- 
ciples by  which  the  application  of  the  statute  is  regulated. 
Its  best  and  most  defensible  definition  makes  it  very 
nearly  tantamount  to  the  familiar  and  compact  rule,  sanc- 
tioned by  all  the  English  as  well  as  the  American  cases ; 
the  eff'ect  of  which  is  controlled  in  this  country  by  well 
settled  and  defined  principles  ;  that  a  promise  is  not  within 
the  statute,  where  the  promisor  or  his  property  was  liable 
to  pay  the  debt.  Whenever  it  means  any  thing  more  than 
this,  the  courts,  whatever  they  may  say,  in  practice  refuse 
to  follow  it ;  the  few  cases  where  they  have  allowed  it  to 
work  out  its  legitimate  consequences,  being  indefensible 
upon  principle,  and  upon  the  authority  of  other  numerous 
decisions.  Hence  we  conclude,  that  the  cases  which  so 
emphatically  condemn  it,  contain  a  correct  exposition  of 
the  law  ;  that  whenever  it  asserts  a  sound  rule,  it  is  a  mere 
paraphrase  of  a  better  defined  principle  ;  and  that  because 
it  never  answers  any  useful  purpose  ;  sometimes  asserts  a 
dangerous  fallacy  ;  and  constantly  leads  to  uncertainty  and 
confusion  ;  it  should  no  longer  be  permitted  to  encumber 
and  disfigure  our  system  of  jurisprudence.  (2/) 

(y)  Before  taking  leave  of  this  entire  class  of  cases,  it  is  perhaps  proper  to 
state  why  we  have  not  treated,  as  the  enunciation  of  a  distinct  principle,  the 
sugj^eslion,  contained  in  several  text  books  and  authorities,  that  some  of  the 
early  decisions  of  the  Williams  and  Leper  series  are  to  be  explained  upoa 


CHAPTER    EIGHTEENTH. 

CASES    WHERE    A    GUARANTY    OF    THE    DEBT    OF    A    THIRD 
PERSON   IS   NOT   WITHIN  THE  STATUTE. 


§  648.  The  cases  embraced  within  this  chapter  are  all 
that  remain  to  be  examined,  in  order  to  complete  the  dis- 
cussion of  that  clause  which  relates  to  special  promises  to 
answer  for  the  debt,  default,  or  miscarriages  of  another 
person.  Although  it  would  seem,  at  first  sight,  that  they 
were  of  all  others,  those  most  obviously  included  within 
the  terms  of  the  clause,  inasmuch  as  they  are,  not  prom- 
ises that  the  promisor  will  pay  a  debt  for  which  another 
is  also  liable,  but  promises  that  the  debtor  himself  shall  pay 
it;  yet  there  are  no  other  cases,  with  respect  to  the  exclu- 
sion of  which  from  the  operation  of  the  statute,  the  courts 
in  this  country  are  now  so  perfectly  of  accord.  They  are 
very  sharply  defined,  being  limited  to  two  kinds  of  cases  ; 
namely,  those  where  the  debt  guai*antied  was  transferred 
to  the  promisee  by  the  promisor,  at  the  time  of  making 
the  guaranty,  upon  a  consideration  moving  wholly  between 
the  parties ;  and  those  where  it  was  thereafter  to  be  con- 
tracted through  the  promisor  as  the  factor  of  the  promisee. 


the  theory,  that  the  consideration  of  the  promise  was  a  purcliase.  But  it  is 
not  possible  to  suppose  that  this  remark  was  intended  to  mean  that  a  prom- 
ise which  would  be  within  the  statute,  if  it  was  founded  upon  a  money 
consideration,  would  be  taken  out  of  the  statute,  by  tlie  fact  that  the  con- 
sideration was  a  purchase  of  property  or  of  an  interest  in  property.  Evi- 
dently the  idea  intended  to  be  conveyed,  was  that  if  a  purchaser  of  property 
promises,  as  the  consideration  of  the  sale,  to  pay  the  debt  of  another,  for 
which  the  property  is  holden,  the  statute  does  not  apply.  This  is  con.se- 
quently  nothing  more  than  a  statement  of  certain  circumstances  under  which 
the  eighth  rule  becomes  applicable;  and  the  cases  where  they  occur,  differ 
from  the  others  only  in  the  fact  that  the  promisor  acquired  an  interest  in  tlie 
property  simultaneously  with  making  the  promise.  This  feature  was  noticed 
in  the  574th  section. 


640  Collateral  Undertakings.      [Ch.  xviii 

§  649.  Although,  for  reasons  presently  to  be  stated,  we 
regard  the  cases  where  the  promisor  was  the  factor  of  the 
promisee,  as  capable  of  a  satisfactory  explanation,  upon 
the  ground  that  the  terms  of  this  clause  are  not  fully 
satisfied  ;  nevertheless  the  adjudications  seem  to  concede 
that  they  fall  within  the  letter  of  the  statute,  and  sustain 
them,  when  they  were  verbal,  upon  some  ground  tending 
to  show  that  its  intent  does  not  reach  them.  Assuming 
this  to  be  the  true  ground,  both  of  these  descriptions  of 
undertakings  are,  in  substance  as  well  as  in  form,  mere 
guaranties ;  and  they  are  the  only  contracts  of  that  kind, 
which  are  valid  without  writing,  (a)  They  also  possess 
this  salient  feature  in  common,  that  the  guarantee  acquires 
his  title  to  the  debt  guarantied  by  some  act  of  the  guaran- 
tor ;  and  all  the  reasons  assigned  for  taking  either  descrip- 
tion out  of  the  statute  (although  with  respect  to  factors' 
undertakings  they  vary  considerably,  and  are  not  always 
quite  consistent  with  each  other)  relate  in  some  form  to 
that  common  feature.  Here,  then,  is  to  be  found  a  con- 
necting link  between  the  two,  proving  them  to  be  mere 
varieties  of  one  class ;  and  although  in  the  present  con- 
dition of  the  authorities,  we  have  not  felt  ourselves  justified 
in  classing  the  two  together,  they  may  both  be  governed 
by  one  general  rule,  the  last  of  this  series,  namely : 

RULE  NINTH. 

A  gnaranty  is  not  witldn.  the  statute,  if  it  was  made  upon  a  consideration  moving  wholly 
between  the  parties  to  it,  and  related  to  the  payment  of  a  debt,  or  the  performance  of  a  duty, 
by  the  third  person  to  the  promisee,  the  right  to  enforce  which  then  first  passed,  or  by  the 
terms  of  the  contract  was  thereafter  to  pass  to  him,  from  or  through  the  guarantor. 


AETICLE  I. 

Where  the  debt  or  contract  guarantied  was  transferred  from  the  guarantor  to  the  guarantee  at 
the  time  of  making  the  contract  of  guaranty,  upon  a  consideration  moving  wholly  between 
the  parties. 

§  650.  The  reason  usually  assigned  by  the  courts  of  this 
country,  for  excluding  this  description  of  contract  from  the 

(a)  In  chapter  seventh,  article  third,  a  species  of  promise  is  treated  of, 
which  bears  considerable  resemblance  to  a  guaranty;  but  it  is  taken  out  of 
the  statute  expressly  upon  the  ground  that  it  is  in  reality  a  direct  contract. 


Art.  I.]  Collateral  Undp:rtakin-gs.  G41 

operation  of  the  statute,  is  tliat  the  guarniity  is  merely  a 
substitute  for  tlie  promise  of  the  guarantor  to  pay  what- 
ever the  other  party  is  to  receive,  in  exchange  for  the  con- 
sideration furnished  by  him.  It  is  therefore  said  to  be  a 
method  of  paying  the  guarantor's  own  debt,  adopted  for 
his  convenience,  and  accepted  in  place  of  his  own  dircet 
obligation.  This  is  very  satisfactory,  when  the  considera- 
tion of  the  transaction  was  connected  with  a  precedent 
debt  of  the  guarantor ;  or  when,  for  any  other  reason,  the 
surrounding  circumstances  plainly  show,  that  the  third 
person's  obligation  and  the  accompanying  guaranty  were 
in  fact  accepted,  in  lieu  of  so  much  money  to  be  paid  by 
the  guarantor.  But  it  is  open  to  considerable  criticism, 
when  the  parties  had  no  other  object  in  view,  than  a 
purchase  and  sale,  especially  when  the  security  was  sold 
for  money  and  at  a  considerable  discount.  And  this  is  the 
precise  state  of  facts  upon  which  the  question  frequently 
arises. 

§  651.  The  exclusion  of  this  species  of  contract  from  the 
provisions  of  the  statute,  has  also  been  occasionally  made 
to  depend  upon  the  elastic  proposition,  examined  at  length 
in  the  last  chapter ;  namely,  that  where  the  leading  object 
of  the  promisor  was  to  subserve  his  own  interest,  the 
statute  does  not  apply.  But  as  far  as  that  proposition 
is  identical  with  the  one  just  mentioned,  it  is  of  course 
open  to  the  same  objections ;  and  if  it  can  be  treated 
as  having,  in  this  description  of  cases,  any  other  signifi- 
cation, the  distinction  depends  upon  the  fact,  that  the 
object  of  the  guarantor  was  to  acquire  the  consideration  ; 
and  in  that  aspect  tlie  distinguishing  feature,  that  the  debt 
or  contract  guarantied  passed  from  him  to  the  other  party, 
becomes  immaterial.  So  that  if  this  be  the  true  explana- 
tion of  the  rule,  it  would  sustain  a  guaranty  of  a  debt 
originally  contracted  by  the  third  pei-son  to  the  guarantee; 
which  is  contmry  to  all  sound  principle,  and  to  the  author- 
ities cited  in  the,sixteentli  chaptiM*.  We  must  therefore 
look  for  some  other  reason  for  excluding  this  kind  of  guar- 
anty from  the  statute. 
81 


642  COLLATEEAL  UnDEETAKINGS.         [Cll.  XVIII 

§  652.  It  has  been  said  that  if  the  security  transferred  to 
the  promisee  was  not  negotiable,  so  that  he  acquired 
merely  a  right  to  receive  the  proceeds,  the  case  is  not 
within  the  statute,  because  the  debtor  owed  nothing  to  the 
promisee  ;  but  this  reason  will  not  apply  where  a  negoti- 
able security  has  been  transferred,  or  where  the  rule  of  the 
common  law  has  been  so  modified  by  statute,  that  the 
assignee  is  entitled  to  enforce  the  demand  by  an  action  in 
his  own  name  against  the  debtor.  The  American  cases 
include  within  the  rule  both  descriptions  of  securities,  and 
properly  so  ;  for  the  character  of  the  security,  in  respect 
to  its  negotiability,  is  merely  accidental ;  and  the  prohibition 
or  permission  to  maintain  an  action  in  the  name  of  the  real 
party  in  interest,  upon  an  instrument  which  is  not  nego- 
tiable, is  a  mere  rule  of  procedure.  Neither  circumstance 
affords  any  substantial  reason,  for  a  distinction  in  the  ap- 
plication of  the  principle. 

§  653.  It  is  very  evident  that  this  class  of  promises  is  not 
within  the  intent  of  the  statute  ;  for  although  the  commen- 
tators differ  sometimes  in  the  details  of  the  reasons  assigned 
by  them,  why  the  legislature  included  promises  to  answer 
for  the  debt  of  another  within  this  section ;  they  all  agree 
in  the  general  proposition,  that  the  motive  for  the  perpe- 
tration of  fraud  and  subornation  of  perjury,  in  such  cases, 
was  to  be  found  in  the  creditor' s  temptation  to  throw  upon 
a  person  of  substance,  the  burden  of  a  bad  debt.  But  if  a 
debt  due  to  the  defendant  himself  is  sold  to  the  plaintiff, 
for  a  consideration  passing  from  the  latter  to  the  defend- 
ant, it  is  clear  that  the  motive  operates  in  a  contrary  direc- 
tion. And  in  the  absence  of  any  express  evidence  upon 
the  point,  the  presumption  that  the  purchaser  required 
from  the  seller  a  guaranty  of  payment,  although  not  strong 
enough  to  raise  a  legal  inference  to  that  effect,  is  neverthe- 
less a  natural  inference  from  the  known  usage  in  such 
cases  ;  unless  the  relative  value  of  the  consideration,  or 
some  other  attending  circumstance,  shows  that  the  pur- 
chaser took  the  security  at  his  own  risk.     Indeed  this 


Art.  I.]  Collateral  Undertakings.  643 

species  of  guaranty  is  only  a  step  beyond  that  which  the 
law  actually  implies  upon  such  a  transfer,  (a) 

§  654.  Perhaps  therefore  a  more  satisfactory  reason,  why 
a  verbal  contract  of  tliis  kind  is  valid,  may  be  found  in  the 
fact  that  it  is  a  mere  extension  of  the  terms  of  the  warranty, 
which  the  law  implies  upon  the  sale  of  every  chose  in 
action  or  chattel ;  and  not  a  contract  created  ab  origine, 
for  the  purpose  specified  in  the  statute.  This  reason  is 
comprehensive  enough  to  include  all  variations  in  the 
details  of  the  different  cases  ;  and  it  is  believed  that  it  rests 
upon  a  solid  foundation  of  principle,  and  finds  a  close 
analogy  in  the  reason  which  has  most  commanded  appro- 
bation, for  excluding  from  the  statute  a  factor' s  del  credere 
contract ;  as  well  as  in  the  reasons  which  have  controlled 
the  decision  of  other  kinds  of  cases  arising  under  this 
clause,  {b) 

§  655.  But  the  only  English  decision  upon  the  subject 
was  placed  upon  the  ground  that  the  transfer  of  an  instru- 
ment, which  is  not  negotiable,  does  not  enable  the  trans- 
feree to  enforce  the  payment  of  any  debt  or  the  fulfilment 
of  any  duty  against  the  party  bound  thereby.  In  Ilar- 
graves  v.  Parsons,  13  Meeson  and  Welsby,  661,  A.  D. 
1844,  already  cited  under  another  rule,(c)  the  defendant 

(a)  Without  entering  at  any  length  into  the  question,  which  has  been  the 
subject  of  considerable  discussion,  what  is  the  extent  of  the  in)pli(.'d  contract, 
arising  upon  the  transfer  for  a  valuable  consideration  of  a  cliose  in  action, 
by  a  person  who  neither  becomes  a  party  to  it,  nor  enters  into  any  express 
warranty  with  respect  thereto ;  it  would  seem  to  be  very  clear  that  it  amounts 
at  least  to  "  an  implied  undertaking  that  he  held  it  by  a  right  and  title,  which 
would  enable  the  purchaser  to  enforce  it  against  the  parties  thereto."  Per 
Comstock,  J.,  Delaware  Bank  v.  Jarvis,  20  New  York,  229.  In  some  of  the 
States  of  the  Union  local  usage,  and  in  others  statutor}'  enactments,  have 
established  a  rule  of  law  that  a  guaranty  of  collection  is  implied  upon  the 
transfer  for  a  valuable  consideration  of  any  instrument  for  the  payment  of 
money. 

(b)  See  Macrory  v.  Scott,  5  Exchequer,  907,  and  20  Law  Journal,  N.  S., 
Exch.  90,  ante,  §§  491,  492;  and  other  cases  cited  in  chapter  fourteenth, 
article  second. 

(c)  S.  C,  14  Law  Journal,  N.  S.,  Exch.,  250.     See  §  366. 


644  Collateral  Undertakings.      [Ch.  xviii. 

and  one  Parker  had  made  written  contracts  for  the  sale 
by  Parker  to  the  defendant  of  the  "put  or  call"  of  certain 
French  railway  shares,  at  a  certain  premium,  at  any  time 
before  the  18th  of  February,  1844 ;  before  which  time  the 
defendant  sold  the  option  to  the  plaintiff,  with  a  guaranty 
in  writing,  which  the  court  construed  as  a  guaranty  for 
the  fulfilment  of  the  contract  by  Parker,  The  shares  hav- 
ing risen  in  value,  the  plaintiff  "called"  them  from  the 
defendant  on  the  16th  of  February,  at  Liverpool ;  the  de- 
fendant immediately  notified  Parker  of  the  "call;"  and 
it  was  then  verbally  agreed  between  the  three,  that  they 
should  be  delivered  at  Paris  on  the  2d  of  March ;  before 
which  time  Parker  failed.  In  an  action  on  the  guaranty, 
the  plaintiff  had  a  verdict ;  and  the  defendant,  pursuant 
to  leave  reserved,  moved  for  a  rule  to  enter  a  nonsuit, 
upon  the  ground,  among  others,  that  the  verbal  promise 
was  within  the  statute.  The  rule  was  refused,  Parke,  B., 
saying  that  the  statute  only  applies  where  the  debt  or 
duty  was  due  to  the  promisee  ;  that  Parker  had  not  con- 
tracted with  the  plaintiff ;  and  his  nonperformance  of  his 
contract  with  the  defendant,  was  no  default  towards  the 
plaintiff ;  consequently  the  defendant' s  undertaking  was 
not  a  promise  to  answer  for  any  default  or  miscarriage 
of  Parker,  in  any  debt  or  duty  towards  the  plaintiff;  but 
an  original  promise  that  a  certain  thing  should  be  done 
by  a  third  person. 

§  656.  Of  the  cases  in  the  United  States,  specimens  pre- 
senting almost  every  possible  variety  in  the  facts  and  in 
the  principles  upon  which  the  decisions  turn,  may  be 
found  in  the  State  of  New  York ;  where  this  doctrine  is 
interwoven  with  a  long  and  very  remarkable  legal  contro- 
versy. In  Smith  v.  Ives,  15  Wendell,  182,  A.  D.  1836, 
and  again  in  Packer  v.  Willson,  id.  343,  in  the  same  year, 
the  Supreme  Court  of  that  State  held  that  a  written  guar- 
anty of  payment  indorsed  upon  an  overdue  promissory 
note  held  by  the  plaintiff,  the  consideration  of  which  was 
forbearance  to  the  maker,  was  within  the  statute,  and  was 
void  when  it  did  not  express  the  consideration.     But  in 


Art.  I.]  Collateral  Undertakings.  Qiii 

HoiLfjn  V.  Gray,  19  Wendell,  202,  A.  D.  1838,  the  same 
court  held  that  a  similai-  guaranty  indorsed  upon  a  thiid 
person' s  promissory  note,  simultaneously  with  the  niak 
ing  of  the  note,  the  note  and  guaranty  having  both  been 
given  as  the  consideration  of  property  sold  by  the  payee 
to  the  maker,  was  in  legal  effect  a  promissory  note  ;  and 
the  guarantor  was  a  joint  and  several  pi'omisor,  with  th«; 
person  whose  name  was  subscribed  on  the  face  of  it.  The 
latter  decision  was  the  lirst  of  a  long  series  of  cases  in  that 
State,  involving  the  question  whether  the  statute  applies 
to  a  written  guaranty  indorsed  upon  or  subjoined  to  the 
note  of  a  third  person  ;  which  was  sometimes  presented  in 
the  indirect  form,  whether  the  action  could  be  maintained 
against  the  guarantor  as  the  maker  or  indorser  of  the  note  ; 
and  sometimes  directly,  whether  such  a  guaranty,  not  ex- 
pressing the  consideration,  was  void  under  the  statute  of 
frauds.  Following  out  the  idea  advanced  in  Hough  v. 
Gray,  that  such  a  guaranty  was  in  legal  effect  a  promis- 
sory note,  the  courts  of  New  York  ultimately  found  them- 
selves involved  in  a  labyrinth  of  contradictions  and  falla- 
cies ;  from  which  they  were  only  extricated  after  the  lapse 
of  upwards  of  twenty  years.  An  outline  of  this  singular 
controversy,  down  to  the  time  when  it  was  settled  by  the 
recognition  of  the  now  prevalent  doctrine  on  this  subject, 
will  be  found  in  the  foot  note,  {d ) 

(c?)  The  case  of  Hough  v.  Gray  was  followed  by  that  of  Luqueer  v.  Prosser, 
1  Hill,  25G,  A.  D.  1841,  in  the  Supreme  Court;  reported  in  the  Court  of 
Errors  under  the  title  of  Prosser  v.  Luqueer,  4  Hill,  420,  A.  D.  1842.  The 
action  was  against  Prosser,  Edson,  and  Arnold,  upon  a  note  payable  to  one 
Parsons  or  bearer,  made  by  Edson  and  Arnold,  and  a  guaranty  of  payment 
and  waiver  of  notice  of  nonpayment  indorsed  thereon,  made  simultaneously 
with  the  note,  and  signed  by  Prosser.  The  note  and  guaranty  had  been 
delivered  on  the  same  day  to  Parsons,  as  security  for  the  payment  of  the  price 
of  articles,  sold  by  him  to  the  makers,  and  he  had  subsequently  transferred 
it  to  the  plaintiffs.  A  verdict  having  been  rendered  in  favor  of  the  plaintiffs, 
the  defendant  Prosser  moved  in  the  Supreme  Court  for  a  new  trial,  which 
was  denied,  the  court  holding  that  he  was  liable  with  the  other  defendants 
as  a  joint  and  several  maker  of  the  note.  The  judgment  thereon  was 
affirmed  by  the  Court  of  Errors,  the  opinion  having  been  delivered  by 
Walworth,  Chancellor;  it  held  ihut  the  defendant  was  liable  as  an  indorser, 


646  Collateral  Undertakings.       [Ch.  xviii. 

§  657.  After  several  conflicting  cases  upon  the  legal 
effect  of  such  a  guaranty,  and  the  application  of  the  stat- 
ute of  frauds  thereto,  the  question  came  before  the  Couri 
of  Appeals  in  the  year  1849,  in  Brown  v.  Curtiss,  2  New 
York  (2  Comstock),  225,  on  a  writ  of  error  to  the  Supreme 
Court,  to  review  the  decision  reported  in  Curtiss  v. 
Broion,  2  Barbour,  51,  A.  D.  1847.  The  evidence  at  the 
trial  in  the  court  below,  showed  that  the  defendant  trans- 
ferred to  the  plaintiff  the  note  of  a  third  person,  payable 
to  the  defendant  or  bearer,  and  which  had  not  matured,  in 
exchange  for  the  defendant' s  own  note  held  by  the  plaint- 

the  waiver  contained  in  his  agreement  dispensing  with  a  demand  and  notice; 
but  the  learned  chancellor  also  expressed  the  opinion  that  the  defendant  wag 
liable  as  a  maker,  (a  striking  illustration  of  the  confusion  which  surrounded 
this  subject).  But  in  Miller  v.  Gaston,  2  Hill,  188,  A.  D.  1842,  the  Supremo 
Court,  Bronson,  J.,  deUvering  the  opinion,  while  conceding  that  the  preced- 
ing cases  established  that  a  guarantor  may  be  treated  in  all  respects  as  a 
maker  of  a  note,  where  he  was  privy  to  the  consideration,  and  the  guaranty 
and  the  note  were  made  simultaneously,  took  a  distinction  between  those 
cases  and  one  where  the  guaranty  was  made  after  the  note  had  taken  effect. 
It  was  held  that  in  the  latter  case  he  could  not  be  treated  as  a  maker  or 
indorser,  and  sued  jointly  with  the  other  parties  by  a  subsequent  holder, 
under  the  statute  permitting  the  joinder  in  one  action,  of  all  the  parties  liable 
upon  the  same  instrument.  It  was  intimated  however-  that  he  might  be 
treated  as  the  maker  of  a  new  note,  and  in  that  capacity  sued  separately  by 
any  subsequent  holder  in  his  own  name.  As  the  guaranty  satisfied  the 
statute,  the  only  question  directly  involved  in  the  case  was  the  right  to 
maintain  the  action  against  all  the  parties;  and  in  the  next  case,  Manrow  v. 
Durham,  3  Hill,  584,  A.  D.  1842,  Nelson,  C.  J.,  delivering  the  prevailing 
opinion  in  the  Supreme  Court,  stated  that  they  had  entertained  no  doubt  in 
Miller  v.  Gaston,  that  the  plaintiff,  as  a  subsequent  holder,  might  have  main- 
tained the  action  against  the  subsequent  guarantor  alone,  as  upon  a  new 
note.  The  substance  of  the  case  of  Manrow  v.  Durham  will  be  presently 
stated,  in  the  order  of  its  decision  in  the  appellate  court ;  the  judgment  upon 
the  writ  of  error  having  been  delayed  till  seven  years  after  the  judgment  in 
the  Supreme  Court.  In  the  next  succeeding  case,  Johnson  v.  Gilbert,  4 
Hill,  178,  A.  D.  1843,  Bronson,  J.,  delivered  the  opinion  of  the  Supreme 
Court,  holding  that  the  statute  of  frauds  did  not  apply  to  a  guaranty  written 
on  the  back  of  another's  overdue  chattel  note,  given  by  the  maker  to  the 
defendant,  and  transferred  by  the  defendant  to  the  plaintiff,  simultaneously 
with  the  execution  of  the  guaranty,  in  consideration  of  a  precedent  debt 
due  from  the  defendant  to  the  plaintiff.     He  said  that  it  was  not  an  under- 


Art.  I.]  Collateral  Undertakings.  647 

iff,  and  at  the  same  time  lie  indorsed  and  signed  a  guar- 
anty thereon,  expressing  no  consideration.  Tlie  plaintiff 
having  had  a  verdict,  notwithstanding  the  objecti(jn  that  the 
guaranty  M-as  within  the  statute,  the  Supreme  Court  denied 
a  motion  made  by  the  defendant  for  a  new  trial,  substan- 
tially on  the  ground  that  under  the  previous  authorities  the 
defendant  must  be  regarded  as  a  maker  of  the  note,  although 
the  opinion  expressed  a  decided  dissatisfaction  with  them. 
This  decision  was  affirmed  by  the  Court  of  Appeals,  but 
upon  a  different  ground  ;  the  opinion  having  been  delivered 
by  Bronson,  J.,  then  a  member  of  the  court  of  last  resort, 

taking  by  the  defendant  to  pay  the  third  person's  debt;  but  that  "it  was  an 
agreement  to  pay  his  own  debt  in  a  particular  way."  And  in  Hunt  v. 
Brown,  5  Hill,  145,  A.  D.  1843,  where,  in  consideration  of  the  discharge  of 
a  precedent  debt  due  by  the  maker  of  a  note  to  the  payee,  the  defendant 
indorsed  upon  the  note  his  guaranty  of  collection,  which  expressed  no  con- 
sideration, (the  note  and  the  guaranty  having  had  a  simultaneous  inception;) 
Bronson,  J.,  delivering  the  opinion  of  the  court,  held  that  the  guaranty  was 
void  under  the  statute  of  frauds,  because,  being  a  guaranty  of  collection,  and 
not  of  payment,  the  defendant  could  not  be  treated  as  a  maker  of  the  note; 
as  the  learned  judge  said  that  he  might  have  been,  within  the  previous 
authorities,  if  he  had  guarantied  the  payment  of  it.  In  Leggett  v.  Ray- 
mond, 6  Hill,  639,  A.  D.  1844,  the  court  held  that  a  blank  guaranty  of  pay- 
ment, expressing  no  consideration,  indorsed  by  the  defendant  upon  a  note, 
payable  to  him  or  bearer,  after  its  date  and  before  its  maturity,  (neither  the 
consideration  nor  the  person  to  whom  it  was  given  appearing  in  evidence,) 
might  be  treated  as  a  blank  negotiable  indorsement;  and  the  plaintifiF  might 
recover  on  proof  of  demand  at  maturity  and  notice  of  nonpayment. 
Bronson,  J.,  who  delivered  the  opinion,  expressed  his  extreme  dissatisfaction 
with  his  decision,  but  he  held  himself  bound  by  the  decision  of  the  Court 
of  Errors  in  Prosser  v.  Luqueer,  where,  he  said,  that  court  treated  Prosser  as 
an  indorser.  But  in  Hall  v.  Farmer,  5  Denio,  484,  A.  D.  1848,  Beardsley, 
C.  J.,  delivering  the  opinion  of  the  Supreme  Court,  said  that  "  the  judicial 
knot,  as  it  cannot  be  untied,  must  be  cut; "  and  accordingly  it  was  held  that 
the  defendants'  blank  guaranty  of  payment,  expressing  no  consideration, 
indorsed  upon  a  note  payable  on  demand,  simultaneously  with  the  making 
of  the  note,  the  actual  consideration  having  been  a  precedent  debt  due  to  the 
plaintiff,  from  the  makers  of  the  note,  was  a  guaranty,  and  not  a  promissory 
note;  and  that  it  was  void  under  the  statute.  However  in  Curtiss  v.  Brown, 
2  Barbour,  51,  A.  D.  1847,  where  the  defendant,  the  payee  of  a  negotiable 
note,  indorsed  upon  the  note,  before  its  maturity,  a  guaranty,  expressing  no 
consideration,  and  delivered  it  to  the  plaintifT,  in  discharge  of  a  previous 


648  Collateral  Undertakings.       [Cli.  xviii. 

who,  while  a  justice  of  the  Supreme  Court,  had  combated 
with  great  ability  and  spirit,  the  doctrine  upon  which  the 
decision  below  proceeded. 

§  658.  His  opinion  commenced  with  a  vigorous  attack 
upon  all  the  cases  which  hold  that,  under  any  circum- 
stances, a  guarantor  of  a  promissory  note  can  be  treated 
either  as  a  maker  or  indorser  of  the  note ;  insisting  that 
the  contract  is  one  of  guaranty,  and  nothing  else.  ''Those 
cases,"  he  said,  "have  never  had  any  ground  of  principle 
to  stand  on,  and  I  trust  they  will  never  again  be  cited  as 

debt  owing  by  him,  the  present  Supreme  Court  of  New  York,  had  pre- 
viously held,  though  with  great  reluctance,  that  the  statute  did  not  apply, 
because  the  defendant  was  a  maktr  of  the  note.  But  although  the  Court 
of  Appeals  affirmed  the  decision  in  this  case  (see  Brown  v.  Curtiss,  2  Com- 
stock,  225,  of  which  the  substance  is  given  in  the  text),  the  two  prevailing 
opinions  repudiated  the  ground  upon  which  the  Supreme  Court  placed  its 
decision;  and  the  case  marks  the  first  step  towards  tlie  attainment  of  the 
reason  upon  which  the  application  of  the  statute  to  this  class  of  cases  wag 
ultimately  placed.  It  was  however  immediately  followed  by  the  failure  of 
the  court  to  agree  upon  any  principle  upon  which  to  determine  the  writ  of 
error  from  the  decision  of  the  Supreme  Court  in  Manrow  v.  Durham,  3  Hill, 
584,  already  mentioned.  The  case  in  the  Court  of  Appeals  is  reported  under 
the  title  of  Durham  v.  Manrow,  in  2  New  York,  (2  Comstock),  533.  There 
the  plaintiff  (Manrow)  had  sued  Durham  and  Moulthrop  in  the  Common 
Pleas  upon  a  joint  guaranty,  expressing  no  consideration,  indorsed  upon  a 
third  person's  note  made  payable  to  Durham  or  bearer.  It  appeared  at  the 
trial  that  before  the  maturity  of  the  note  Durham  purchased  a  horse  from 
the  plaintiff,  and  gave  the  note  and  the  guaranty  in  part  payment  therefor, 
Moulthrop  having  executed  the  guaranty,  at  the  request  of,  and  as  surety 
for  Durham.  The  plaintiff  was  nonsuited  in  the  Common  Pleas,  and  upon 
error  the  judgment  upon  the  nonsuit  was  reversed,  in  the  Supreme  Court, 
by  a  majority  vote,  the  prevailing  opinion  holding  that  the  guaranty  was  in 
legal  effect  a  promissory  note.  The  defendants  brought  error  to  the  Court 
of  Appeals;  where  Strong.  J.,  delivered  an  opinion  in  favor  of  the  aflBrmanoe 
of  the  judgment  with  respect  to  Durham,  upon  substantially  the  same 
grounds  as  those  taken  by  him  in  his  opinion  in  Brown  v.  Curtiss  cited  in 
the  text,  holding  that  although  in  this  case  the  consideration  was  the  purchase 
of  property,  the  principle  was  the  same  as  in  the  other  case ;  the  guaranty 
being,  in  both  cases,  merely  a  method  of  paying  the  guarantor's  debt.  With 
respect  to  Moulthrop,  he  said  that  the  two  agreed  that  the  maker  of  the  note 
should  pay  the  debt  due  primarily  from  one  of  themselves  to  the   plaintiff. 


Art.  I.J  Collateral  Undertakings.  649 

authority  in  this  State."  He  then  said  that  if  lh<'  statute 
of  frauds  was  applicable  to  the  agreement  before  the  court, 
it  could  not  stand,  as  it  was  a  guaranty  expr(»ssing  no  con- 
sideration ;  and  it  could  not  be  held  to  be  a  promissory 
note,  without  confounding  all  legal  distinctions  in  relation 
to  the  nature  of  contracts.  But  he  held  that  the  statute 
does  not  apply  to  such  a  case,  because  "although  in  form 
this  is  a  promise  to  answer  for  the  debt  or  default  of  another, 
in  substance  it  is  an  engagement  to  pay  the  guarantor' s 
own  debt  in  a  particular  way."  "It  would  be  good  with- 
out any  writing."     He  was  followed  b}'  Strong,  J.,  who 

The  promise  of  Moulthrop  was  not  especially  for  the  purpose  of  paying  the 
maker's  debt,  but  that  of  his  co-guarantor;  the  method  being  incidental.  It 
was  absolute  and  unconditional,  that  the  purchase  money  for  the  horse  should 
be  paid  for  in  a  particular  way;  and  his  responsibility  for  the  maker's  debt 
was  also  incidental.  Both  were  bound  as  principals,  and  there  was  no 
reason  for  separating  them  in  their  liability.  The  statute,  he  thought,  has 
no  application  to  a  joint  engagement  of  two,  to  pay  the  original  debt  of  one 
of  them,  through  a  third  person.  With  him  three  judges  concurred.  Jewett, 
C.  J.,  agreed  tliat  the  guarantor  of  a  promissor}'  note  could  not  be  treated  as 
a  maker,  whether  he  came  in  when  the  note  was  made  or  afterwards ;  but 
be  argued,  in  a  long  and  elaborate  opinion,  that  this  guaranty  was  within 
the  statute  of  frauds,  because  it  was  literally  an  engagement  that  the  maker 
should  pay  the  note,  not  that  the  defendants  would  pay  the  money.  He 
distinguished  the  case  from  Brown  v.  Curliss,  on  the  ground  that  there  the 
defendant  was  originally  indebted  to  the  plaintiff  for  borrowed  money,  which 
indebtedness  the  plaintiff  agreed  to  discharge,  only  upon  receiving  a  note 
with  the  defendant's  guaranty;  and  as  the  guaranty  which  the  defendant 
gave,  was  void  bv  tlie  statute  of  frauds,  the  action  could  have  been  sustained 
upon  the  original  indebtedness,  under  the  money  counts  in  the  declaration. 
He  added,  that  in  any  view  of  this  ca.se  Moulthrop  was  a  mere  surety,  and  a 
joint  action  would  not  lie  against  him  and  Durham.  In  the  result  of  this 
opinion  two  judges  concurred;  one  of  them  however  putting  his  decision  on 
the  ground,  that  as  Moulthrop  was  not  a  party  to  the  consideration,  the  joint 
action  could  not  be  sustained.  But  a  judgment  of  the  New  York  Court  of 
Appeals  is  not  regarded  as  settling  any  principle,  unless  five  judges  concur, 
and  the  absence  of  Bronson,  J.,  prevented  such  a  concurrence.  The  same 
remark  applies  to  the  disposition  made  by  the  court  at  tiie  .lame  term,  of 
Hall  V.  Farmer,  2  New  York  (2  Comstock),  553,  on  error  from  5  Denio,  484. 
This  was  the  case  where  the  Supreme  Court,  disregarding  its  previous 
decisions,  and  "  cutting  the  judicial  knot,"  had  held  that  the  guaranty  was 
within  the  statute  as  already  mentioned.  In  the  Court  of  Appeals,  three  of 
82 


650  COLLATEKAL   UNDERTAKINGS.         [Ch.  XVIII. 

held  that  the  instrument  was  presumptively  a  guaranty, 
but  that  it  might  be  shown  by  the  attending  circumstances 
to  be  an  original  promise  ;  and  that  would  depend  upon  the 
object  which  the  guarantor  designed  to  accomplish.  If 
this  object  was  to  pay  his  own  debt,  the  promise  was  orig- 
inal, notwithstanding  its  form.  He  concluded  :  "This  is  a 
plain  and  palpable  case  of  a  promise  of  a  guarantor  to  pay 
his  own  debt,  through  the  note  of  another ;  and,  what  is  a 
material  fact  to  denote  the  main  design  of  the  transaction, 
the  whole  credit  was  given  to  the  guarantor.  It  is  there- 
fore clearly  an  original  undertaking,  and  neither  within  the 
letter  of  the  statute,  nor  the  mischief  which  it  was  designed 
to  prevent."  In  the  result  of  these  opinions,  but  not  in  the 
arguments  by  which  it  was  sustained,  four  of  the  remain- 
ing judges  concurred,  and  the  judgment  below  was 
aflSrmed,  with  two  dissenting  votes. 

§  659.  But  this  decision  had  apparently  but  little  effect 
upon  the  settlement  of  this  vexed  question.     At  the  De- 


the  four  judges  who  had  voted  for  affirmance  in  Durham  v.  Manrow,  voted 
now  for  reversal;  and  the  fourth  united  with  the  three,  who  had  voted  for 
reversal  in  the  preceding  case,  in  voting  now  for  affirmance;  placing  his 
decision  upon  the  ground,  that  as  the  note  was  payable  on  demand,  and  no 
credit  given,  there  was  no  consideration  for  tlie  guaranty.  Thus  the  daylight 
which  had  been  made  to  glimmer  through  all  this  fog,  by  the  decision  in 
Brown  v.  Curtiss,  was  again  shut  out;  and  the  conflict  of  opinion  continued 
to  prevail  in  the  Supreme  Court,  then  reorganized  under  the  constitution  of 
1846,  so  as  practically  to  form  several  distinct  tribunals.  In  Burt  v. 
Horner,  5  Barbour,  501,  decided  in  the  year  1849,  (but  before  Brown  v. 
Curtiss,)  one  branch  of  that  tribunal,  held  that  a  guaranty  of  collection, 
indorsed  upon  a  third  person's  promissory  note,  was  not  within  the  statute 
of  frauds ;  and  that  like  other  such  guaranties,  it  would  be  discharged  by 
want  of  diligence  on  the  part  of  the  guarantee  in  proceeding  against  the 
principal  debtor.  The  consideration  of  the  defendants'  guaranty  was  the 
sale  of  goods  to  them  by  the  plaintiflf,  upon  an  agreement  to  accept  in  pay- 
ment thereof  the  note  in  question,  with  their  guaranty  of  collection ;  the 
same  being  then  in  the  defendants' hands,  and  yet  to  mature.  In  Tyler  «. 
Stevens,  11  Barbour,  485,  A.  D.  1851,  another  branch  of  the  same  court 
held  that  the  statute  did  not  apply  to  the  defendant's  guaranty  of  payment 
of  a  third  person's  note,  which  was  transferred  by  him  to  the  plaintiflf,  before 


Art.  I.J  Collateral  Undertakings.  651 

cember  term  of  the  Court  of  Apjieals  in  the  same  year 
(1849),  two  cases,  involving  the  application  of  the  statute 
to  this  species  of  guaranty,  were  disposed  of  witliout  any 
definite  decision  of  the  points  of  law  arising  tlierein,  in 
consequence  of  the  inability  of  a  constitutional  majority 
of  the  judges  to  agree  upon  any  principle  ;  although  one 
of  the  cases  had  been  argued  three  times.  These  were 
Durham  v.  Jfanroio,  2  New  York  (2  Comstock),  533,  and 
Hall  V.  Farmer^  id.  553,  abstracts  of  which  will  be  found 
in  the  note  to  the  last  section.  In  one  of  the  opinions  de- 
livered in  the  former  case,  Brownv.  Curtiss  was  explained 
upon  a  theory  which  practically  denied  to  it  all  efficacy  as 
a  precedent  upon  the  principal  question  involved.  The 
case  was  greatly  complicated  by  the  presentation  of  an- 
other question,  discussed  in  a  previous  chapter,  arising 
out  of  the  fact  that  the  defendants  had  jointly  executed 
the  guaranty  in  question,  although  one  of  them  was  a 
mere  surety  for  the  other.  In  consequence  of  these  con 
flicting  opinions  the  deadlock  remained  unaltered. 


its  mauirity,  in  consideration  of  a  smaller  sum  of'mone}'^  paid  by  the  phiintift' 
to  the  defendant.  The  contrary  decision  was  made  by  another  branch  in 
Spicer  v.  Norton,  13  Barbour,  542,  A.  D.  1852,  which  is  said  to  have  been 
affirmed  in  the  Court  of  Appeals;  but  the  decision  upon  the  affirmance  is 
not  to  be  found  in  the  reports.  The  guaranty  in  question,  whicli  was  in  effect 
a  guaranty  of  collection,  was  indorsed  upon  a  third  person's  previously  sub- 
sisting note,  transferred  to  the  plaintiff  by  the  defendant,  as  part  of  the 
purchase  price  of  a  fourth  person's  note;  and  no  consideration  having  been 
expressed  therein,  the  Supreme  Court  held  that  it  was  void  under  the 
statute.  The  prevailing  opinion,  delivered  by  Parker,  J.,  attacked  the  whole 
doctrine  of  the  opinions  delivered  in  Brown  v.  Curtiss.  Upon  substantially 
the  same  facts,  except  that  the  question  arose  upon  a  guaranty  of  payment, 
the  same  court  also  ruled  that  the  guaranty  was  within  the  statute,  in  Wood 
V.  Wheelock,  25  Barbour,  G25,  A.  D.  1856.  The  sam.e  opinion  was  again 
expressed  in  Sweet  v.  Bradley,  24  Barbour,  549,  A.  D.  1857,  where  the 
question  arose  upon  a  verbal  promise  made  by  the  defendant,  the  holder  of 
a  note,  upon  its  transfer  to  the  plaintiff  in  consideration  partly  of  money, 
and  partly  of  a  precedent  debt  of  the  defendant,  to  the  effect  that  the  note 
should  be  paid  at  maturity,  and  that  the  makers  and  indorsers  were  solvent. 
The  court  said  that  the  guaranty  of  payment  was  within  the  statute,  but  the 
plaintiff  was  allowed  to  recover  upon  the  warranty  of  solvency. 


652  Collateral  Undertakings.      [Cli.  xviii. 

§  660.  But  the  rule  in  one  description  of  these  cases,  was 
soon  afterwards  settled  by  the  decision  of  the  Court  of  Ap- 
peals in  Breiosfer  v.  Silence,  8  New  York  (4  Selden),  207, 
A.  J).  1853.  This  was  also  an  action  upon  a  guaranty  ex- 
pressing no  consideration,  subjoined  to  a  promissory  note, 
and  made  simultaneously  with  the  note,  for  the  accomoda- 
tion of  the  maker ;  the  consideration,  both  of  the  note  and 
of  the  guaranty,  being  a  sale  of  property  to  the  maker  by 
the  payee,  who  had  transferred  the  note  with  the  guaranty 
to  the  plaintiff.  The  defendant  had  judgment  in  the  Su- 
preme Court,  upon  a  special  verdict  setting  forth  the  facts ; 
and  that  judgment  was  affirmed  on  appeal  by  the  Court 
of  Appeals  ;  where  it  was  held,  with  only  one  dissenting 
vote,  that  the  guaranty  was  within  the  statute,  on  the 
ground  that  it  was  a  distinct  contract  from  the  note  ;  and 
that  the  cases  which  hold  that  such  a  guaranty  is  a  prom- 
issory note,  or  that  the  guaranty  and  the  note  are  one  in- 
strument, cannot  be  sustained.  It  was  also  said  that  the 
principle  of  the  opinions  delivered  in  Brown  v.  Curtiss, 
was  correct ;  and  that  if  in  this  case  the  sale  had  been 
made  to  the  defendant,  as  it  was  in  Brown  v.  Curtiss,  he 
would  have  been  liable ;  but  the  remark  was  evidently 
obiter. 

§  661.  And  the  main  question,  which  had  continued  to 
be  debated  in  the  Supreme  Court  with  as  much  diversity 
of  opinion  as  before,  was  at  length  settled,  and  this  con- 
troversy brought  to  a  close,  by  the  unanimous  decision  of 
the  Court  of  Appeals  in  Gar  dell  v.  McNiel,  21  IS'ew  York, 
336,  A.  D.  1860.  There  the  plaintiff's  testator  had  sold  a 
horse  to  the  defendant,  and  had  received  from  him,  in 
part  payment  therefor,  the  chattel  note  of  one  Cornell; 
which  the  defendant  verbally  warranted  to  be  "good 
and  collectable  ; ' '  and  that  the  plaintiff' s  testator  would 
get  the  chattel  when  the  note  became  due.  It  was  one 
of  the  terms  of  the  bargain  for  the  sale  of  the  horse  that 
this  note  was  to  be  received,  with  the  defendant' s  guaranty, 
in  part  payment  therefor.  A  judgment  for  the  plaintiff 
for  the  value  of  the  chattel  was  affirmed  upon  appeal. 


Art.  I.]  Collateral  Undertakings.  653 

Comstock,  C.  J.,  delivering  the  opinion  of  the  court,  said  : 
*'It  is  claimed  that  the  guaranty  is  void  by  the  statute  of 
frauds.  In  mere  form  it  was  certainly  a  collateral  under- 
taking, because  it  was  a  promise  that  another  person  should 
perfonn  his  obligation.  But  looking  at  the  substance  of 
the  transaction,  we  see  that  the  defendant  paid,  in  this  man- 
ner, a  part  of  the  price  of  a  horse  sold  to  himself.  In  a 
sense  merely  foraial,  he  agreed  to  answer  for  the  debt  of 
Cornell.  In  reality  he  undertook  to  pay  his  own  vendor 
60  much  of  the  price  of  the  chattel,  unless  a  third  person 
should  make  the  payment  for  liim,  and  thereby  discharge 
him." 

§  662.  Tliis  decision  was  followed  by  the  Supreme  Court, 
upon  facts  not  materially  different,  in  Fowler  v.  Clear- 
loater,  35  Barbour,  143,  A.  D.  1861,  and  Daiiber  v.  Black- 
ney,  38  Barbour,  432,  A.  D.  1862. 

§  663.  It  may  therefore  be  considered  as  settled  in  New 
York,  upon  the  authority  of  these  cases,  that  where  the 
holder  of  a  third  person' s  promissory  note  or  other  con- 
tract, negotiable  or  non-negotiable,  which  had  a  valid 
inception  as  between  the  maker  and  the  holder,  transfers 
the  same  to  another  person,  upon  a  consideration  moving 
to  him,  his  verbal  guaranty  thereof,  made  simultaneously 
with  the  transfer  and  as  a  part  of  the  transaction,  is  not 
within  the  statute  of  frauds  ;  and  that  it  makes  no  differ- 
ence whether  the  guaranty  is  absolute,  or  subject  to  any 
condition  or  qualification.  And  similarly  that  if  the  guar- 
anty is  in  writing,  but  is  insufficient  as  a  note  or  memoran- 
dum within  the  statute,  that  will  not  prevent  the  promisee 
from  recovering,  upon  proof  of  the  actual  consideration. 
But  if  the  guaranty  was  made  upon  a  consideration  mov- 
ing to  the  third  person,  so  that  the  guarantor  came  in 
merely  as  a  surety  for  him,  the  guaranty  is  within  the 
statute.  Whether  the  joint  guaranty  of  the  person  bene- 
fited by  the  consideration,  ^^ith  another  as  his  surety,  (no 
copartnership  or  other  community  of  interest  existing  be- 
tween them,)  would  be  held  to  be  within  or  without  the 


654  Collateral  Undertakin^gs.      [Ch.  xviii. 

statute  as  to  the  biirety,  is  left  in  doubt ;  the  decision  in 
Manrow  v.  Durham  having  settled  nothing  upon  that 
point,  and  the  surety' s  liability  depending  upon  the  prin- 
ciples discussed  at  length  in  a  preceding  chapter,  with 
respect  to  another  question,  {e) 

§  664.  In  other  States,  the  same  principles  have  been 
established,  without  a  struggle  similar  to  that  which  at- 
tended their  adoption  in  New  York  ;  and  it  is  believed  that 
all  the  American  courts,  as  far  as  they  have  spoken,  are 
now  entirely  harmonious  upon  this  subject.  The  authori- 
ties, some  of  them  anterior  in  date  to  the  New  York  decis- 
ions, will  be  found  collected  in  the  note.  They  include 
cases  where  the  instrument  guarantied  was  negotiable  and 
not  negotiable  ;  where  the  guaranty  was  founded  upon  a 
new  consideration,  then  moving  to  the  guarantor ;  and 
where  the  consideration  was  a  precedent  debt  of  the  guar- 
antor. In  some  of  them  the  new  consideration  was  money 
paid  for  the  purchase  of  the  instrument  guarantied ;  in 
others  it  was  goods  sold ;  in  others  an  exchange  of  the 
promisee' s  own  obligation,  for  that  of  the  third  person,  with 
the  accompanying  guaranty.  (/") 


(fl")  See  chapter  eighth,  article  first. 

{f^  Hackleman  v.  Miller,  4  Blackford  (Indiana),  322,  A.D.  1837,  cited  also 
ante,  §  35a;  Adcock  v.  Fleming,  2  Devereux  and  Battle  (North  Carolina), 
225  (1837) ;  Jones  v.  Palmer,  1  Douglass  (Michigan),  379  (1844);  Hopkins  v. 
Richardson,  9  G-rattan  (Virginia),  485  (1852);  Hall  u.  Rodgers,  7  Humphreys 
(Tennessee),  536  (1847);  Ashford  v.  Robinson,  8  Iredell  (North  Carolina), 
114(1847);  Beatyv.  Grim,  18  Indiana,  131  (1862);  Rowland  v.  Rorke,  4 
Jones  (North  Carolina),  337  (1857) ;  Thomas  v.  Dodge,  8  Michigan,  51  (1860) ; 
Huntington  v.  Wellington,  12  Michigan,  10  (1863);  Malone  v.  Keener,  44 
Pennsylvania  State  Reports,  107  (1862) ;  Thurston  v.  James,  6  Rhode 
Island,  103  (1859);  Smith  v.  Finch,  2  Scammon  (Illinois),  321  (1840);  Dyer 
V.  Gibson,  16  Wisconsin,  557  (1863).  The  question  frequently  arises  in  this 
class  of  cases,  whether  the  guarantee  is  entitled,  in  an  action  upon  the 
guaranty,  to  recover  any  thing  beyond  the  amount  actually  advanced  to  the 
guarantor,  when  the  instrument  transferred  was  for  the  payment  of  money, 
and  the  consideration  of  the  guaranty  was  a  sum,  less  in  amount  than  that 
payable  by  the  terms  of  the  instrument,  forming  the  subject  of  the  guaranty. 
It  has  been  held  in    some   of  the  United  States  that  under  those  circum- 


Art.  II.]  Collateral  Undertakings.  655 


ARTICLE  II. 

Wliere  the  debt  guarantied  was  thereafter  to  be  contracted  throngh  the  agency  of  the  promisor, 
acting  as  the  factor  of  the  promisee,  under  a  del  credere  commission. 

§  665.  A  del  credere  commission  has  been  defined,  as  a 
commission  "  under  wliicli  the  agent,  in  consideration  of 
an  additional  premium,  engages  to  insure  to  his  principal, 
not  only  the  solvency  of  the  debtor,  but  the  punctual  dis- 


stances  the  guaranty  is  usurious;  and  such,  we  believe,  was  generally  under- 
stood to  be  the  rule  in  England,  independently  of  the  series  of  recent 
statutes;  which,  after  gradually  emasculating  the  laws  against  usury,  finally 
swept  thera  away  altogether.  And  it  would  seem  that  in  most  cases  the 
damages  can  be  reduced  to  the  amount  of  the  actual  advance  and  interest, 
only  for  the  purpose  of  taking  the  contract  out  of  the  statute  of  usury.  In 
several  of  the  United  States,  the  contract  may  be  saved  in  that  manner. 
The  doctrine  is  well  settled  in  New  York  that  the  consideration  may  be 
inquired  into;  and  that  the  guarantee  can  recover  from  the  guarantor  the 
amount  of  his  advance  and  interest,  but  no  more.  The  rule  is  the  same, 
whether  the  liability  of  the  guarantor  was  assumed  by  indorsing  a  promissory 
note  or  bill  of  exchange,  signing  it  as  surety,  or  guarantying  its  payment  or 
collection,  either  upon  its  face  or  by  a  separate  contract.  Braman  v.  Hess, 
13  Johnson,  52;  Munn  v.  Commission  Company,  15  id.,  44;  Cram  v. 
Hendricks,  7  Wendell,  569;  Mazuzan  v.  Mead,  21  id.,  285;  Ingalls  v.  Lee, 
9  Barbour,  647 ;  Cobb  v.  Titus,  13  id.,  45,  affirmed  10  New  York  (6  Selden), 
198;  Burton  v.  Baker,  31  Barbour,  241.  So  where  a  mortgage  was  assigned, 
with  a  covenant  for  the  payment  of  the  mortgage  debt,  Jones  v.  Stienbergh, 
1  Barbour's  Chancery,  250 ;  or  a  covenant  cf  the  assignor,  with  another  as  his 
surety,  to  pay  any  deficiency  upon  foreclosure,  Goldsmith  v.  Brown,  35 
Barbour,  484;  or  a  covenant  of  the  assignor,  with  a  separate  bond  executed 
by  himself  and  a  surety,  for  the  full  amount  of  the  debt,  Rapelye  v.  Ander- 
son, 4  Hill,  472.  A  like  rule  seems  to  prevail  in  Connecticut,  Belden  v. 
Lamb,  17  Connecticut,  441;  in  Maine,  French  v.  Grindle,  15  Maine,  163; 
Lane  v.  Steward,  20  id.,  98;  in  Missouri,  Miildrow  v.  Agnew,  11  Missouri. 
G16;  and  in  South  Carolina,  Brock  v.  Thompson,  1  Bailey,  322.  But  the 
authorities  agree,  tliat  the  contract  can  be  thus  saved  from  the  objection  that 
it  was  usurious,  only  when  the  instrument  transferred  had  a  valid  inception, 
in  the  hands  of  the  transferor.  And  where  the  guaranty  related  to  an  instru- 
ment then  in  the  hands  of  the  guarantee,  the  latter  is  entitled  to  recover  his 
full  damage?,  notwithstanding  the  consideration  may  have  been  comparatively 
trifling  in  amount.  Cooper  v.  Page,  24  Maine,  73;  Oakley  v.  Boorman.  21 
Wendell,  588 ;  and  so  where,  for  any  other  reason,  no  question  arises  under 
the  usury  statutes.  Day  v.  Elmore,  4  Wisconsin,  190. 


656  Collateral  Undertakings.      [Cli.  xviii. 

cliarge  of  the  debt."(^0  ^^  was  said  in  Grove  v.  Dubois, 
1  Term  Reports,  112,  approved  in  Blze  v.  DicTcason,  id., 
285,  A.  D.  1786,  that  the  engagement  which  a  factor,  act- 
ing under  such  a  commission,  assumes  to  his  principal,  is 
absolute ;  and  that  he  is  liable  in  the  first  instance,  the 
vendee  being  liable  to  the  principal  only  collaterally,  and 
as  his  surety  ;  and  a  similar  doctrine  is  supposed  to  be 
found  in  some  other  cases  decided  about  the  same  time.  (5) 
But  afterwards  the  court  of  King' s  Bench  held  distinctly 
in  Morris  v.  Cleashy,  4  Maule  and  Selwyn,  566,  A.  D. 
1816  ;  and  again  in  Horriby  v.  Lacy,  6  Maule  and  Selwyn, 
166,  A.  D.  1817,  that  such  a  factor  is  merely  the  guarantor 
of  the  payment  of  the  price,  when  it  shall  become  due  ;  or 
in  other  words  that  he  is  not  liable  to  his  principal  in  the 
first  instance,  but  only  in  case  of  the  purchaser' s  default. 
And  although  there  is  still  some  confusion  on  the  subject, 
it  is  believed  that  this  ruling  is  now  accepted,  by  the  best 
authorities  in  both  countries,  as  containing  a  correct  exposi- 
tion of  the  nature  and  extent  of  the  factor' s  liability,  (c) 

(a)  Dunlap's  Paley  on  Agency,  page  41.  But  this  definition  would  be 
more  exact,  if  the  words  "for  a  valuable  consideration"  were  substituted  for 
"  in  consideration  of  an  additional  premium."  In  practice,  the  factor  gen- 
erally charges  a  specific  commission  for  the  guaranty,  in  addition  to  the 
ordinary  commission  on  the  sales.  But  this  is  not  essential  to  constitute  this 
species  of  contract ;  a  factor  may  do  no  other  than  a  del  credere  business, 
for  which  he  charges  only  one  rate.  Nor  is  it  essential  that  the  considera- 
tion of  the  contract  should  be  a  rate  or  commission  on  the  sale. 

(6)  Houghton  v.  Matthews,  3  Bosanquet  and  Puller,  485,  p.  489,  A.  D. 
1803 ;  McKenzie  v.  Scott,  6  Brown's  Parliamentary  Cases,  280,  A.  D.  1796. 

(c)  "The  most  important  in  a  practical  view  to  be  here  taken  notice  of,  is 
the  contract  of  guaranty  by  a  factor,  arising  from  the  receipt  ot  what  is 
commonly  called  a  del  credere  commission,  (the  nature  whereof  has  been 
already  stated,)  by  which  he  in  effect  becomes  liable,  in  the  case  of  a  sale  of 
goods,  to  pay  to  his  principal  the  amount  of  the  purchase  money,  if  the  buyer 
fails  to  pay  it,  when  it  becomes  due.  It  has  been  sometimes  suggested  that 
this  contract  makes  the  factor  the  primary  debtor  to  his  principal  on  the  sale. 
But  this  doctrine  is  unmaintainable,  both  upon  principle  and  authority. 
[2  Kent's  Commentaries,  pp.  G24,  625,  4th  edition  ;  Thompson  v.  Perkins, 
3  Mason,  282 ;  Gall  v.  Comber,  7  Taunton,  558 ;  Peele  v.  Northcote,  7  Taun- 
ton, 478;  Morris  v.  Cleasby,  4  Maule  and  Selwyn,  5GG,  574;  Paley  on 
Agency  by  Lloyd,  41,  note  d;  id.,  Ill,  note;  Leverick  v.  Meigs,  1  Cowen, 


Art.  II.]  Collateral  Undertakings.  657 

§  666.  A  leading  author,  writing  soon  after  the  decision 
in  Morris  v.  Cleashy,  says,  referring  to  that  case:  "I 
think  it  clear  that  the  del  credere  contract,  so  explained, 
is  within  the  statute  of  frauds,  and  must  be  in  writing.  "(^) 
But  the  rule  is  now  settled  the  other  way.     Various  rea- 

645.]  The  true  engagement  of  the  factor  in  such  cases,  is  merely  to  pay  the 
debt,  if  it  is  not  punctually  discharged  by  the  buyer.  In  legal  effect  he 
warrants  or  guaranties  the  debt;  and  tlms  he  stands  more  in  the  character  of 
a  surety  for  the  debt  than  as  a  debtor.  Hence  it  is  well  established  that  he  is 
not  liable  to  pay  the  debt  until  there  has  been  a  default  by  the  buyer. 
[Morris  v.  Cleasby,  4  Maule  and  Selwyn,  574.]  "  Story  on  Agency,  5lh  edi- 
tion, §  215.  But  in  Leverick  v.  Meigs,  1  Cowen  (New  York),  G45,  Wood- 
worth,  J.,  said:  "The  only  difference  between  a  factor  acting  under  a  del 
credere  commission,  or  without  one,  is  as  to  the  sales  made.  In  the  former 
case  he  is  absolutely  liable,  and  may  correctly  be  said  to  become  the  debtor 
of  his  principal ;  but  it  is  not  strictly  correct  to  say  he  is  placed  in  the  same 
situation  as  if  he  had  become  the  purchaser  himself;  for,  as  we  have  seen,  the 
principal,  notwithstanding  this  liability,  may  exercise  a  control,  not  allowable 
between  creditor  and  debtor.  When  the  principal  appears,  the  right  of  the 
factor  to  receive  payment  ceases.  This  shows  that  the  effect  of  the  com- 
mission is  not  to  extinguish  the  relation  between  principal  and  factor,  but 
applies  solely  to  a  guaranty  that  the  purchaser  shall  pay.  It  is  not  a  con- 
tingent liability,  I  admit,  so  as  to  require  legal  measures  to  be  exhausted 
against  the  purchaser,  before  the  factor  is  bound,  but  an  engagement  to  pay 
on  the  day  the  purchase  money  becomes  due.  Although  the  factor  is 
absolutely  liable,  he  is  not  bound  to  pay  until  the  money  becomes  due  from 
the  purchaser.  It  may  therefore  be  more  correctly  laid  down,  that  the  factor 
under  a  commission  becomes  a  debtor  to  his  principal,  with  the  limitations  I 
have  stated."  The  question  which  the  learned  judge  was  considering  was 
whether  a  del  credere  factor  was  liable  to  guaranty  the  solvency  of  the 
drawer  of  a  bill  by  which  he  had  made  a  remittance  to  his  principal,  after 
the  receipt  of  the  money.  He  added :  ''  It  is  only  on  this  ground  "  (that  the 
factor  is  the  real  purchaser)  "  that  he  can  be  bound  to  guaranty  the  remit- 
tance. This  arises  from  the  general  principle,  that  the  debtor  is  bound  to 
make  payment  to  his  creditor,  and  consequently  if  he  remits  in  bills  which 
turn  out  of  no  avail,  it  is  no  payment.  It  does  not  di.scharge  a  precedent 
debt,  unless  it  be  so  expressly  agreed  between  the  parties.  The  commission 
del  credere  does  not  make  the  agent  cease  to  be  a  factor.  He  may  be  con- 
sidered as  a  factor  who  has  sold  for  cash.  Beyond  the  engagement  that  the 
purchaser  shall  pay  at  the  time  agreed  on,  he  is  bound  by  no  other  law  than 
a  factor  without  a  del  credere  commission."  For  other  expositions  of  the 
nature  of  this  liability,  see  the  note  to  the  next  section,  and  the  comments 
of  the  judges  contained  in  various  cases  cited  in  the  text  of  this  article. 
(d)  Theobald  on  Principal  and  Surety,  §  81. 
83 


658  COLLATEKAL  UNDERTAKINGS.        [Ch.  XVIII. 

sons  have  been  given  for  this  result ;  many  of  which  are  far 
from  being  satisfactory.  Thus  it  has  been  said,  that  the 
agent' s  contract  is  merely  that  he  will  exercise  an  increased 
diligence,  beyond  that  which  the  law  imposes  upon  him 
as  a  duty ;  but  as  no  amount  of  diligence,  not  even  the 
entire  solvency  of  ihe  purchaser,  will  exonerate  him,  if  the 
debt  is  not  in  fact  paid,  it  is  evident  that  his  contract  is 
not  in  any  sense  for  his  own  act,  but  exclusively  for  the 
act  of  the  purchaser.  The  doctrine  that  no  promise  is 
within  the  statute,  when  the  leading  object  of  the  promisor 
was  to  benefit  himself,  has  also  been  pressed  into  the  ser- 
vice; but,  as  the  factor's  only  object  is  to  pocket  his 
reward,  this  doctrine,  if  it  explains  the  ruling  in  this  class 
of  cases,  goes  to  the  extent  of  upholding  every  verbal 
promise  to  answer  for  the  debt  of  another,  if  a  distinct 
reward  was  paid  to  the  promisor  therefor ;  a  theory  which 
we  have  commented  upon  at  length  in  the  preceding 
chapter.  It  has  also  been  said  that  the  factor  is  in  legal 
effect  the  purchaser  of  the  goods,  for  which  he  pays  by  an 
engagement  that  the  persons  to  whom  he  shall  resell  the 
same,  shall  pay  to  his  vendor ;  a  doctrine  entirely  incon- 
sistent with  the  relative  rights  and  duties  of  the  prin- 
cipal and  factor  before  the  sale,  and  of  the  principal, 
factor,  and  purchaser  afterwards.  An  analogy  has  also 
been  drawn  between  the  surrender  of  the  goods  by  the 
owner  to  the  factor  upon  his  promise,  and  a  similar  sur- 
render by  the  promisee  who  has  a  previous  lien  upon 
goods,  in  which  the  promisor  has  an  interest.  But  this 
proves  too  much ;  for  there  are  few  cases,  where,  upon  the 
same  theory,  a  verbal  promise  to  pay  the  debt  of  another 
could  not  be  sustained  because  the  promisee  relinquished 
the  consideration ;  and  besides  the  authorities  do  not  sustain 
a  verbal  promise,  that  another  shall  pay,  based  upon  such 
a  surrender.  Other  reasons  have  been  assigned,  amount- 
ing to  but  little  more  than  to  state  in  a  different  form,  the 
proposition  that  the  promise  is  not  within  the  statute,  {e) 

(e)  Many  of  these  theories  will  be  found  in  the  extracts  given  from 
opinions  in  the  cases  cited  in  the  text.  Others  are  contained  in  the  elementary 
Looks,  from  two  of  which  we  append  extracts.     In  the  sixth  American 


Art.  II.  J  Collateral  Undertakings.  659 

§  667.  But  substantially  the  same  reason  suggested  in 
the  foregoing  article,  for  sustaining  a  verbal  guaranty  of 
the  payment  of  a  debt  transferred  to  the  guarant(M?  by  the 
guarantor,  will,  it  is  believed,  afford  a  satisfactory  ground 
for  taking  also  this  class  of  engagements  out  of  the  statute  ; 
and  it  may  be  deduced  from  the  opinions  of  the  judges  in 
some  of  the  best  considered  cases.  The  del  credere  com- 
mission creates  merely  an  increased  liability,  beyond  that 
which  the  factor  assumes  by  virtue  of  his  employment ; 
and  it  is  a  liability  of  the  same  general  character,  not  a 
contract  ab  origine,  to  do  that  which  the  statute  requires 
to  be  manifested  by  a  writing.     A  general  factor  impliedly 

edition  of  Smith's  Leading  Cases,  volume  I,  page  489,  the  annotator  (Judge 
Hare)  says  that  the  true  explanation  of  the  cases,  which  hold  that  the  statute 
does  not  apply  to  sales  on  a  del  credere  commission,  may  perhaps  he  found 
in  the  doctrine  that  any  promise  to  pay  the  debt  of  another  upon  a  consid- 
eration, no  matter  how  disproportionate,  moving  to  the  promisor,  is  not 
within  the  statute ;  but  the  point  cannot  be  considered  as  decided.  However 
he  afterwards  adds  (p.  494)  :  "  One  of  the  reasons  given  for  this  conclusion  is, 
that  as  agents  are  liable  for  good  faith  and  due  diligence  in  the  transaction 
of  the  business  confided  to  their  care,  astipulation  by  which  this  liability  is 
defined  or  even  extended,  cannot  be  regarded  as  a  promise  for  the  default 
of  another,  in  the  exclusive  sense  contemplated  by  the  statute.  But  it 
would  also  appear,  that  a  guaranty  or  insurance  of  a  debt,  for  a  percentage 
or  commission,  would .  be  valid  aside  from  this  ground ;  on  the  general  prin- 
ciple that  a  party  who  promises  to  pay  the  debt  of  another  for  value  received, 
makes  the  debt  his  own,  and  cannot  rely  on  the  statute  as  a  defence  to  an 
action,  brought  to  compel  the  fulfilment  of  the  engagement  into  which  he 
has  entered."  In  1  American  Leading  Cases,  fourth  edition,  p.  667,  it  is 
said:  "The  contract  created  by  a  del  credere  commission,  is  an  independ- 
ent contract  between  the  principal  and  agent,  separate  from  the  sale,  and 
not  aSecting  the  relations  between  the  principal  and  the  buyer,  or  those 
between  the  agent  and  the  buyer.  It  is  an  absolute  engagement  by  the 
factor,  private  between  himself  and  the  principal,  and  distinct  from  the  sale 
which  he  makes,  that  the  debts  to  which  it  refers  shall  be  paid  at  the  time 
they  are  due;  or  in  other  words,  that  they  shall  be  cash  in  the  principal's 
account,  at  the  time  they  are  due.  Being  an  original  and  absolute  engage- 
ment, it  is  not  within  the  statute  of  frauds,  and  need  not  be  in  writing;  and 
being  an  independent  contract  between  the  principal  and  agent,  and  in  its 
legal  effect  a  direct  responsibility  for  the  money  due  upon  the  sales,  there 
need  be  no  previous  proceedings  or  recourse  by  the  principal  against  the 
buyer,  before  he  can  charge  the  factor." 


660  Collateral  Undertakings.      [Ch.  xtitt. 

undertakes,  among  other  things,  to  seek  out  a  responsible 
purchaser,  and  to  collect  and  remit  the  proceeds,  when  the 
period  of  credit,  limited  by  his  instructions,  shall  have 
expired ;  and  he  is  answerable  for  any  loss,  in  conse- 
quence of  his  default  in  any  of  these  particulars.  Such  a 
default,  in  one  sense,  will  render  him  liable  for  the  debt  or 
default  of  another ;  but  no  one  would  pretend  that  his 
undertaking  would  thereby  be  drawn  within  the  statute 
of  frauds.  And  the  del  credere  factor  assumes  precisely 
the  same  liability ;  to  which  he  superadds  an  agreement  to 
guaranty  the  payment  of  the  purchase  price.  This  is 
merely  an  increase,  in  the  same  general  direction,  of  his 
common  law  liability ;  as  if  a  private  carrier  for  hire,  who 
is  responsible  by  virtue  of  his  employment  for  ordinary 
diligence  only,  should  expressly  assume  some  of  the  res- 
ponsibilities of  a  common  carrier,  from  which  he  would 
otherwise  be  exempt ;  as  for  instance,  loss  in  consequence 
of  defective  roadways,  or  defective  vehicles,  etc.,  upon 
some  line  of  travel.  And  while  the  factor' s  guaranty,  if 
it  stood  alone,  might  be  within  the  statute,  neither  the 
whole  contract,  nor  this  particular  stipulation  will  be  so 
affected,  where  the  latter  is  merely  an  amplification  of  an 
undertaking  to  which  the  statute  has  no  application. 

§  668.  It  may  however  be  doubted  whether  the  statute 
would  apply,  irrespective  of  these  suggestions ;  for  it  is  by 
no  means  clear  that  the  transaction  would  satisfy  the  lan- 
guage of  this  clause.  It  does  not  appear  to  be  a  promise  to 
answer  for  the  debt  or  default  of  any  'particular  person  ; 
for  there  was  no  debt  in  existence  at  the  time  the  contract 
is  made ;  not  in  the  sense  of  Lord  Mansfield' s  proposition 
in  Mawhrey  v.  Cunningham,  which  he  subsequently 
abandoned,  (/)  but  in  the  sense  that  there  is  no  debtor,  or 
person  proposing  to  become  a  debtor,  to  whom  the  term 
"  another  person "  can  apply.  Indeed  no  reason  is  per- 
ceived why  a  distinct  class  should  not  be  added  to  those 
already  recognized,  where  the  promise  is  without  the  stat- 

(/)  Ante,  §§  144,  145. 


Art.  II.]  COLLATEEAL  UNDERTAKINGS.  661 

ute  because  those  words  are  not  satisfied ;  comprising  not 
only  del  credere  contracts,  but  all  promises  where  the  per- 
son, for  whose  debt  or  default  the  promisor  undertakes  to 
answer,  is  not  designated  at  the  time  of  the  contract.  If 
A  undertakes  to  procure  competent  mechanics  to  build  a 
house  for  B,  and  that  it  shall  be  completed  by  thorn  in  a 
certain  time,  and  according  to  certain  specifications,  (it 
being  perfectly  understood  that  A  is  not  to  do  any  of  the 
work  himself,)  in  one  sense  A  undertakes  for  their  default 
or  miscarriages  ;  but  probably  no  one  would  doubt  that  the 
contract  was  not  within  this  clause  of  the  statute.  That  the 
reason  is  because  the  persons  from  whom  A  undertakes 
are  not  then  in  esse,  for  the  purpose  of  the  contract,  will  be 
apparent  from  the  fact  that  if  they  had  been  designated  at 
tlie  time,  and  the  undertaking  was  that  they  should  per- 
form, probably  no  one  would  doubt  that  it  was  within  the 
statute.  So  in  the  case  of  a  factor' s  contract  with  his  prin- 
cipal. If  the  buyer  was  named,  doubtless  the  statute 
would  apply  to  a  del  credere  contract ;  and  so  if  an  ordinary 
factor,  having  already  made  a  sale  for  his  principal,  should 
guaranty  the  payment  of  the  price  by  the  purchaser,  for  a 
new  consideration  passing  between  him  and  his  principal. 

§  669.  But  as  the  authorities  do  not  place  the  rule  upon 
this  ground,  it  is  better,  in  order  to  preserve  as  much  uni- 
formity as  possible,  in  this  complicated  branch  of  the  law, 
to  adhere  to  the  other  reason,  which  appears  to  be  suflB- 
cient.  The  doctrine  that  the  statute  does  not  apply  to  a 
del  credere  contract  originated  in  the  United  States; 
although  the  English  courts,  as  far  as  they  have  spoken, 
have  also  adopted  it.  The  earliest  case  is  Swan  v. 
NesmitJi,  24  Massachusetts  (7  Pickering),  220,  decided 
A.  D  1828.  There  the  action  was  against  the  fiictors  in 
favor  of  their  principals,  to  recover  upon  a  verbal  del 
credere  agreement ;  and  at  the  trial  it  was  held  that  it  was 
not  within  the  statute,  and  the  plaintiffs  had  a  verdict,  A 
motion  for  a  new  trial  was  denied,  Parker,  C.  J.,  deliver- 
ing the  opinion  of  the  court.  He  said  that  the  legal  effect 
of  the  contract  was  to  make  the  defendants  liable  at  all 


662  COLLATEKAL  UNDERTAKINGS.        [Cll.  XVIII. 

events  for  the  proceeds  of  tlie  sale,  so  that,  according  to 
some  authorities,  they  may  be  charged  on  indebitatus  as- 
sumpsit for  goods  sold  and  delivered ;  and  although  this 
was  denied  by  others,  the  form  of  the  action  was  not  mate- 
rial, as  they  cannot  be  sued  till  after  the  sale,  and  the 
expiration  of  the  term  of  credit.  He  added,  that  some  of 
the  principles  laid  down  in  the  earlier  cases,  touching  the 
liability  of  factors  under  such  a  commission,  had  been 
questioned  ;  "but  it  seems  nowhere  to  be  required  that  a 
guaranty  of  this  nature  should  be  in  writing,  for  the  lia- 
bility is  admitted  to  be  original ;  and  although  the  vendor 
may  in  such  case  forbid  payment  to  the  agent,  if  he  is  in- 
solvent, and  maintain  an  action  for  himself,  which  in  other 
cases  is  held  to  be  the  distinctive  mark  of  a  collateral 
undertaking,  yet  in  this  particular  contract  such  a  privi- 
lege to  the  vendor  is  held  not  to  alter  the  nature  of  his 
claim  upon  the  factor." 

§  670.  The  same  opinion  was  expressed  in  the  United 
States  Circuit  Court  for  the  district  of  Vermont,  in  Brad- 
ley V.  Ricliardson,  23  Vermont,  720,  A.  D.  1851,  although 
no  question  under  the  statute  was  directly  involved  in  the 
decision.  The  plaintiffs  moved  for  an  injunction,  upon  a 
bill  filed  to  stay  the  collection  of  certain  judgments  against 
a  corporation ;  alleging  that  they  were  creditors  and  stock- 
holders of  the  corporation,  and  interested  in  certain 
property,  upon  which  the  judgments  were  liens.  One  of 
the  objections  to  the  judgments,  on  which  they  relied,  was 
that  in  the  account  between  the  defendants  and  the  cor- 
poration, the  latter  had  not  been  credited  with  the  amount 
of  certain  sales  of  goods  upon  an  unexpired  credit ;  which 
the  defendants  had  effected,  as  the  factors  of  the  corpora- 
tion, under  a  del  credere  commission.  Upon  that  question 
Prentiss,  J.,  denying  the  motion  for  an  injunction,  said 
that  it  was  once  a  question  whether  a  factor  who  sold 
goods  on  credit,  did  not  become  immediately  liable  to  the 
principal ;  yet  the  question  was  now  settled  that  his  un- 
dertaking was  merely  to  answer  for  the  solvency  of  the 
buyers,  or  rather  to  guaranty  to  the  principal  the  pay- 


Art.  II.]  Collateral  Undertakings.  663 

ment  of  the  debts  due  to  liim  from  tlie  buyers  ;  and  that 
he  was  liable  only,  if  the  buyers  failed  to  pay  the  purchase 
money  when  it  became  payable.  He  added  :  "Some  con- 
fusion has  arisen  upon  this  subject,  from  the  decisions  on 
the  question  whether  the  undertaking  of  a  factor  is  a 
contract  within  the  statute  of  frauds,  and  so  must  be  in 
writing.  The  better  opinion  is  that  it  need  not  be  in  writ- 
ing ;  that  though  a  guaranty,  it  is  not  a  collateral  engage- 
ment, but  an  original  and  absolute  one,  that  the  prices 
for  which  the  goods  are  sold  or  the  debts  created  by  the 
sales  of  the  goods,  shall  be  paid  to  the  principal,  when  the 
credit  given  on  the  sales  shall  have  expired." 

§  671.  The  question  had  previously  received  a  thorough 
examination  in  the  State  of  New  York,  in  two  cases  which 
were  ultimately  decided  in  the  court  of  last  resort.  In 
WoW  V.  Ko2?pel,  5  HUl,  458,  A.  D.  1843,  the  plaintiff  had 
sued  in  the  New  York  Common  Pleas,  to  recover  the  price 
of  certain  goods  sold  by  the  defendants,  as  factors  under 
a  del  credere  commission.  The  agreement  was  verbal, 
and  the  defence  was  that  it  was  void  by  the  statute  of 
frauds.  The  plaintiff  having  recovered  judgment  in  the 
Common  Pleas,  the  defendants  brought  error  to  the  Su- 
preme Court,  where  the  judgment  was  affirmed.  Cowen, 
J.,  delivering  the  opinion  of  the  court,  said  that  the  only 
authority  in  favor  of  holding  the  promise  to  be  within  the 
statute,  grows  out  of  the  nature  of  the  contract,  as  held  by 
the  King's  Bench  in  Morris  v.  Cleasbj/,  4  Maule  and 
Selwyn,  566,  which  defines  the  liability  differently  from 
what  the  previous  cases  had  done,  asserting  that  the  factor 
is  a  guarantor  of  the  debts  created ;  that  is  to  say  that  they 
are  due  to  the  merchant,  and  the  factor's  engagement  is 
secondary  and  collateral,  depending  upon  the  debtor's 
default.  Thereupon  some  of  the  English  text  writers  as- 
sert that  the  contract  is  within  the  statute  ;  but  others  assert 
the  contrary  opinion,  founding  it  upon  the  former  cases, 
holding  that  the  factor  was  the  primary  debtor,  whi(;]i  are 
overruled  by  that  decision.  He  added  that  in  Stoa7i  v. 
JVesmith,  the  Supreme  Court  of  Massachusetts,  whether 


664  COLLATEEAL  UNDERTAKINGS.         [Ch,  XVIII. 

Or  not  tliey  were  aware  of  the  decision  in  Morris  v. 
Cleashy^  were  aware  of  the  rule  laid  down  in  that  case, 
and  considered  the  obligation  as  a  guaranty  ;  but  notwith- 
standing they  held  that  it  was  not  within  the  statute. 

§  672.  "But,"  he  continued,  "a  guaranty,  though  by 
parol,  is  not  always  within  the  statute.  Perhaps,  after  all, 
it  may  not  be  strictly  correct  to  call  the  contract  of  the 
factor  a  guaranty,  in  the  ordinary  sense  of  that  word. 
The  implied  promise  of  the  factor  is  merely  that  he  will 
sell  to  persons  in  good  credit  at  the  time  ;  and  in  order  to 
charge  him,  negligence  must  be  shown.  He  takes  an  addi- 
tional commission,  however,  and  adds  to  his  obligation 
that  he  will  make  no  sales  unless  to  persons  absolutely 
solvent ;  in  legal  effect,  that  he  will  be  liable  for  the  loss 
which  his  conduct  may  bring  upon  the  plaintiff  without 
the  onus  of  proving  negligence.  The  merchant  holds  the 
goods,  and  will  not  part  with  them  to  the  factor  without 
this  extraordinary  stipulation,  and  a  commission  is  paid 
to  him  for  entering  into  it.  What  is  this,  after  all,  but 
another  form  of  selling  the  goods  %  Its  consequences  are 
the  same  in  substance.  Instead  of  paying  cash,  the  factor 
prefers  to  contract  a  debt  or  duty  which  obliges  him  to  see 
the  money  paid.  This  debt  or  duty  is  his  own,  and  arises 
from  an  adequate  consideration.  It  is  contingent,  depend- 
ing on  the  event  of  his  failing  to  secure  it  through  another, 
some  future  vendee,  to  whom  the  merchant  is  first  to  resort. 
Upon  nonpayment  by  the  vendee  the  debt  falls  absolutely 
on  the  factor."  And,  he  added,  whatever  may  be  the  form 
of  the  principal' s  action  against  the  factor,  it  is  brought  to 
recover  the  factor' s  own  debt. 

§  673.  Referring  then  to  several  cases,  in  which  it  had 
been  held  that  a  promise,  though  in  form  to  pay  the  debt  of 
another,  is  not  within  the  statute ;  as  where  the  promisor  as- 
signs a  third  person' s  promissory  note  and  guaranties  its 
collection  ;  or  where  the  promise  is  made  to  the  debtor  him- 
self ;  or  where  the  consideration  of  the  promise  is  the  sur- 
render of  a  lien.  fund,  or  security;  he  concluded:  "The 


Art.  II.]  Collateral  Undertakings.  665 

merchant  gives  up  liis  goods  to  be  sold  and  pays  a  premium. 
Is  not  this  in  truth  as  much  and  more  than  many  of  those 
cases  require  which  go  on  the  r(^linquishment  of  a  security  ? 
Suppose  a  factor  agrees  by  parol  to  sell  for  cash,  but  gives 
a  credit.  His  promise  is  virtually  that  he  will  pay  the 
amount  of  the  debt  he  thus  makes.  Yet  who  would  say 
his  promise  is  within  the  statute  ?  The  amount  of  the 
argument  for  the  defendant  would  seem  to  be,  that  an 
agent  for  making  sales,  or  indeed  a  collecting  agent,  can- 
not, by  parol,  undertake  for  extraordinary  diligence,  be- 
cause he  may  thus  have  the  debt  of  another  thrown  upon 
him.  But  the  answer  is,  that  all  such  contracts  have  an 
immediate  respect  to  his  own  duty  or  obligation.  The 
debt  of  another  comes  incidentally  as  a  measure  of 
damages." 

§  674.  A  wi-it  of  error  upon  this  judgment  was  brought 
by  the  defendants,  and  the  decision  of  the  Court  of  Errors 
thereon  (A.  D.  1845,)  is  reported  in  Wolff  v.  Koppel,  2 
Denio,  368.  Porter,  Senator,  delivered  the  prevailing 
opinion  of  the  court,  contending  that  the  question  should 
be  regarded  as  settled  by  the  current  of  decisions  which 
prevailed  before  Morris  v.  Cleashy ;  the  rule  in  which  he 
cliaracterized  as  a  recent  innovation,  which  had  never  been 
adopted  in  this  country  ;  and  he  thought  that  the  Ameri- 
can courts  ought  not  to  follow  the  English  courts  in  their 
departure  from  the  former  rule.  These  contracts,  he  said, 
have  existed  in  this  country  as  long  as  commerce  has 
flourished,  and  the  understanding  of  the  mercantile  com- 
munity has  been  general  and  uniform  that  the  factor's 
agreement  "was  original  and  absolute  to  pay  the  price  of 
the  sale,  deducting  the  commission,  at  the  time  the  credit 
expired,"  although  he  doubtless  expected  to  receive  the 
fund  from  the  purchaser.  Hand,  Senator,  dissented  and 
delivered  an  opinion  arguing  very  ably,  upon  principle 
as  well  as  upon  authority,  that  the  factor's  undertak- 
ing is  collateral  merely.  But  a  decided  majority  of  the 
court  concurred  with  Senator  Porter,  and  so  the  judgment 
of  the  Supreme  Court  was  affirmed. 
84 


666  COLLATEEAL   UnDEETAKINGS.         [Ch.  XVIII. 

§  675.  The  question  came  before  the  New  York  Court 
of  Appeals  in  the  year  1856,  in  Sherwood  v.  Stone,  14  New 
York  (4  Kernan),  267,  the  facts  being  substantially  the 
same  as  in  Wolff  v,  Koppel,  and  the  decision  in  that  case 
was  followed  by  the  unanimous  vote  of  the  court.  John- 
son, J.,  delivered  a  short  opinion  favoring  the  affirmance 
of  the  judgment,  upon  the  principle  of  stare  decisis.  Mitch- 
ell, J.,  said  that  at  the  time  when  the  State  constitution 
adopted  the  common  law,  the  rule  upon  this  subject  was 
settled  by  the  two  cases  in  the  first  of  Term  Reports,  and 
the  subsequent  English  decisions  cannot  alter  the  law. 
He  thought  that  the  contrary  results  were  produced  by 
the  different  views  of  the  contract  taken  in  the  two  coun- 
tries ;  in  England  it  is  understood  to  be  a  contract  to  pay, 
if  the  money  cannot  be  collected  of  the  purchaser  ;  but  in 
the  United  States  it  is  understood  to  be  a  contract  to  pay 
at  the  expiration  of  the  term  of  credit,  whether  the  pur- 
chaser be  solvent  or  not ;  that  is,  an  original  undertaking, 
without  any  reference  to  the  debt  or  liability  of  another. 
The  principal' s  right  to  sue  the  purchaser  is  a  quality 
added  by  the  law,  and  not  the  contract  of  the  parties ;  and 
the  factor  has  also  a  right  to  sue.  The  factor' s  guaranty 
also  diflfers  from  a  promise  to  pay  the  debt  of  another  in 
another  particular,  that  the  principal  transfers  to  him  a 
right  to  sue  for  the  debt  in  his  own  name,  accounting  only 
for  the  net  balance  of  the  account ;  which  shows  that  to 
some  extent  the  purchaser's  debt  is  made  the  property  of 
the  factor,  and  he  becomes  to  that  extent  the  purchaser  of 
it,  and  so  far  substitutes  his  own  liability  for  that  of  the 
purchaser.  The  effect  of  this  is  generally  to  make  the 
factor  practically  the  owner  of  the  debt,  and  this  is  invari- 
ably so  if  he  remains  solvent,  and  on  just  terms  with  his 
principal. 

§  676.  But  the  apprehension,  expressed  in  all  these  cases, 
that  the  ruling  respecting  the  application  of  the  statute 
would  conflict  with  that  of  the  English  courts,  has  appar- 
ently proved  unfounded ;  and  the  latter  have  been  able  to 
reconcile  the  decision  in  Morris  v.  Cleashy,  with  a  ruling 


Art.  II.]  Collateral  Undertakings.  667 

that  the  contract  of  the  factor  is  not  within  the  statute. 
At  least  such  would  appear  to  be  the  case,  from  the  decis- 
ion of  the  Court  of  Exchequer  in  Couturier  v.  Hastie,  8 
Exchequer,  40,  A.  D.  1852.  {g)  There  a  cargo  of  corn  had 
been  shipped  by  the  plaintiffs  at  Salonica  for  London,  and 
sold  by  the  defendants  as  their  factors  on  a  del  credere 
commission  ;  but  in  fact  at  the  time  of  the  sale  the  corn 
had  become  so  damaged,  that  it  had  been  condemned  at 
an  intermediate  port  and  sold  there  ;  and  on  this  intelli- 
gence reaching  England  the  purchaser  repudiated  the  sale, 
and  subsequently  became  bankrupt :  whereupon  the 
plaintiffs  brought  this  action  against  the  factors.  Several 
points  were  made  for  the  defence,  and  among  others,  that 
the  defendants'  del  credere  contract  was  within  the  statute 
of  frauds,  the  only  written,  evidence  of  it  being  a  letter 
which  did  not  comply  with  the  requirements  of  the  statute. 
At  the  trial  the  judge  ruled  tliat  the  defendants'  under- 
taking was  not  within  the  statute ;  but  that  the  contract 
imported  that  the  corn  was  in  existence  as  such,  and 
capable  of  delivery,  and  upon  the  latter  ground  the  de- 
fendants had  a  verdict.  This  was  set  aside  and  a  verdict 
ordered  to  be  entered  for  the  plaintiffs,  after  argument 
in  term. 

§  677.  Parke,  B.,  assigned  the  following  reasons  for 
holding  that  the  defendants  were  liable  on  the  del  credere 
contract.  "Doubtless  if  they  had,  for  a  percentage, 
guarantied  the  debt  owing,  or  performance  of  the  contract 
by  the  vendee,  being  totally  unconnected  with  the  sale, 
they  would  not  be  liable  without  a  note  in  writing  signed 
by  them  :  but  being  the  agents  to  negotiate  the  sale,  the 
commission  is  paid  in  respect  of  that  employment;  a 
higher  reward  is  paid  in  consideration  of  their  taking 
greater  care  in  sales  to  their  customers,  and  precluding 
all  question  whether  the  loss  arose  from  negligence  or 
not ;  and  also  for  assuming  a  greater  share  of  responsi- 
bility than  ordinary  agents,  namely,  responsibility  for  the 

{(j)  S.  C.  22  Law  Journal,  N.  S.,  Exchequer,  97. 


668  COLLATEKAL  UNDERTAKINGS.        [Ch.  XVIII. 

solvency  and  performance  of  their  contracts  by  their 
vendees.  This  is  the  main  object  of  the  reward  being 
given  to  them  ;  and  though  it  may  terminate  in  a  liability 
to  pay  the  debt  of  another,  that  is  not  the  immediate 
object  for  w^hich  the  consideration  is  given  ;  and  the  case 
resembles  in  this  respect  those  of  Williams  v.  Leper  and 
Castling  v.  Aubert.  We  entirely  adopt  the  reasoning  of 
an  American  judge  (Mr.  Justice  Cowen)  in  a  very  able 
judgment  on  this  very  point  in  Wolff  v.  Koppel,  5  Hill, 
468."(^) 

§  678.  In  the  subsequent  case  of  WickTiam  v.  Wickham^ 
2  Kay  and  Johnson,  478,  decided  A.  D.  1855,  Vice 
Chancellor  Page  Wood  regarded  the  decision  of  the 
Exchequer  in  Couturier  v.  Hastie,  upon  the  effect  of  the 
statute  of  frauds,  as  not  only  satisfactory  in  its  reason- 
ing but  binding  as  authority ;  notwithstanding  that  the 
decision  had  then  been  reversed  on  the  other  point  in  the 
Exchequer  Chamber.  In  the  case  tiien  before  him, 
the  Vice  Chancellor  came  to  the  conclusion,  upon  a  care- 
ful examination  of  the  facts,  that  the  contract  was  a 
primary  engagement  on  the  part  of  the  factors,  to  make 
good  the  payments  at  the  end  of  every  year  for  the 
goods  supplied  by  the  principals ;  but  he  distinctly 
said  that  if  the  contract  was  for  a  del  credere  agency,  he 
concurred  with  what  was  urged  by  the  plaintiffs'  counsel, 
that  Couturier  v.  Hastie  established  that  it  would  not 
operate  as  a  guaranty,  and  would  not  be  a  promise  to 

(li)  The  judgment  rendered  for  the  plaintiffs  upcn  the  decision  was  reversed 
on  error  in  the  Exchequer  Chamber,  Hastie  v.  Couturier,  9  Exchequer,  102, 
A.  D.  1853  (S.  C,  17  Jurist,  1127;  22  Law  Journal,  N.  S.,  Exch.,  299),  and 
the  latter  decision  was  affirmed  in  the  House  of  Lords,  Couturier  v.  Hastie, 
5  House  of  Lords  Cases,  673,  A.  D.  1856  (S.  C,  2  Jurist,  N.  S.,  1241 ;  25 
Law  Journal,  N.  S.,  Exch.,  253) ;  but  in  each  of  the  appellate  courts  the 
decision  was  put  upon  the  ground,  that  the  terms  of  the  contract  between 
the  defendants  and  the  purchaser  imported,  that  at  the  time  it  was  entered 
into,  the  corn  was  existing,  in  a  state  to  be  bought,  sold,  and  delivered;  and 
the  opinion  expressed  by  the  Court  of  Exchequer,  respecting  the  validity 
of  the  defendants'  contract  with  the  plaintifis,  under  the  statute  of  frauds, 
was  not  brought  in  question. 


Art.  II.]  Collateral  Undertakings.  669 

answer  for  the  debt  of  another,  within  the  fourth  section 
of  the  statute  of  frauds.  He  added:  "When  I  look  at 
the  whole  of  that  case,  and  consider  the  reasons  given  by 
the  judges  in  delivering  their  judgments,  though  given 
very  cautiously  and  guardedly,  I  cannot  but  conclude  that 
they  considered  that  an  agent,  entering  into  a  contract  in 
the  nature  of  a  del  credere  agency,  entered  in  effect  into  a 
new  substantial  agreement  with  the  persons  whose  agency 
he  undertook  ;  that  the  agreement  so  entered  into  by  him 
was  not  a  simple  guaranty,  but  a  distinct  and  positive 
undertaking  on  his  part,  on  which  he  would  become 
primarily  liable  ;  otherwise  I  cannot  see  how  the  learned 
judges  could  arrive  at  the  conclusion  that  the  undertaking 
was  not  within  the  statute  of  frauds.  Certainly  the  opin- 
ion of  the  American  judge,  which  one  of  the  learned 
judges  referred  to  with  approbation,  in  delivering  his  judg- 
ment in  Couturier  v.  Hastie^  goes  to  the  full  extent  which 
I  have  described. "(i) 

§  679.  The  opinion  of  Lord  Wensleydale  in  Couturier  v. 
Hastie  is  particularly  worthy  of  attention,  because  he 
assigned  as  a  reason  for  his  conclusion,  that  the  princi- 
pal object  of  the  plaintiffs  in  giving  the  reward,  which 
formed  the  consideration  of  the  promise,  was  not  to  create 
a  liability  on  the  part  of  the  defendants  to  answer  for  the 
debt  of  another.  We  have  already  expressed  our  opinion 
in  support  of  the  proposition,  that  where  the  leading  object 
of  the  transaction  was  not  to  create  such  a  liability,  the 
statute  does  not  apply  ;  and  have  pointed  out  the  differ- 
ence between  that  principle  and  the  doctrine  which  we 
have  condemned  in  the  preceding  chapter.  (/)  It  was 
then  remarked,  that  the  essential  point  of  difference 
between  the  two  was  that  the  latter  suffered  both  parties 
to  have  such   a  common  object ;    and  the  promisee  to 

(t)  Couturier  v.  Hastie  is  also  cited  in  the  eighth  edition  of  Chitty  on 
Contracts,  p.  196  (A.  D.  1868),  as  settling  the  law  that  a  factor's  engagement 
under  a  del  credere  agency  need  not  be  in  writing. 

(;•)  Ante,  §§  615,  616. 


670  Collateral  Undeetakhstgs.      [Ch.  xviii. 

have  it  for  Ms  leading  object.  It  will  be  noticed  that 
this  distinguished  judge  applied  precisely  this  test  to  the 
case  then  before  him,  where  the  effect  of  a  guaranty  of  a 
debt  thereafter  to  be  created  was  in  question ;  thereby 
sanctioning  our  conclusion,  that  it  is  only  when  totli  'par- 
ties contemplate  something  different  from  the  assump- 
tion of  liability  for  a  third  person' s  debt,  default,  or  mis- 
carriage, that  the  contract  will  not  be  within  the  statute. 
That  his  Lordship  did  not  intend  to  lay  down  any  general 
rule  like  the  proposition,  the  fallacy  of  which  we  have 
labored  to  demonstrate,  Is  apparent  from  his  pointed  con- 
demnation of  one  of  its  inevitable  consequences,  which 
furnishes  the  aptest  illustration  of  its  mischievous  tend- 
ency ;  namely,  the  exclusion  from  the  operation  of  the 
statute  of  a  simple  guaranty  of  another's  debt,  founded 
upon  a  distinct  pecuniary  consideration,  paid  by  the 
creditor  to  the  guarantor. 


PART  THIRD. 


OF  AGREEMENTS  MADE  UPON  CONSIDERATION 
OF  MARRIAGE. 


CHAPTER    NINETEENTH. 

CASES   WITHIN   THE    TIIIKD    CLAUSE    OF   THE    FOURTH    SEC- 
TION  OF  THE  STATUTE. 


ARTICLE  I. 
Object,  effeot,  and  true  interpretation  of  this  clanM. 

§  680.  The  third  clause  of  the  fourth  section,  which  pro- 
vides that  no  action  shall  be  brought  "to  charge  any 

PERSON  UPON  ANY  AGREEMENT  MADE  UPON  CONSIDERATION 

OF  MARRIAGE,"  unless  it  shall  be  manifested  by  a  writing, 
was  probably  inserted  as  one  of  the  amendments,  which, 
as  we  have  seen,  were  added  to  the  original  draft  of  the 
bill,  during  its  passage  through  the  two  houses  of  Parlia- 
ment, (a)  This  is  indicated,  not  only  by  the  structural 
peculiarities  of  the  section,  which  render  the  words  "to 
charge  any  person"  tautological ;  but  also  by  the  fact  that 
the  agreements  to  which  the  second,  fourth  and  fifth  clauses 
relate,  are  described  therein  according  to  their  form  or  sub- 
ject matter;  whereas  the  third  adopts  the  consideration 
as  the  distinguishing  feature  of  those  embraced  within  it. 
Perhaps  also  it  would  not  be  incorrect  to  say,  that  the  dan- 
ger of  fraud  and  perjury  in  the  attempt  to  establish  agree- 
ments of  this  character,  was  not  the  principal  reason  why 
the  legislature  required  them  to  be  committed  to  writing. 
We  may  rather  attribute  this  provision  to  an  apprehen- 
sion of  the  evils  to  result,  from  permitting  every  promise 
relating  to  property,  which  may  have  passed,  during 
courtship,  between  the  future  husband  and  wife,  and 
every  expression  of  intended  bounty,  which  may  have 
fallen  from  the  friends  of  either,  to  be  made  the  founda- 
tion of  an  action  after  marriage,  even  where  no  fraud  was 

(o)  See  note  to  §  3,  ante. 
85 


674  Antenuptial  Agreements.         [Ch.  xix. 

designed,  and  no  perjury  committed.  These  constitute 
tlie  agreements  which  the  statute  was  intended  to  embrace  ; 
and  except  for  its  provisions,  they  are,  like  other  exec- 
utory agreements,  as  valid  and  as  capable  of  enforcement, 
when  they  were  merely  verbal,  as  when  they  were  in 
in  writing.  (&) 

§  681.  With  respect  to  promises  looking  to  a  provision 
for  the  future  husband  or  wife,  made  prior  to  or  during 
the  engagement,  by  the  relatives  or  other  friends  of  either, 
the  policy  of  the  statutory  requirement  of  a  writing  rests 
upon  very  clear  and  satisfactory  grounds.  Nothing  is 
easier  than  a  mutual  misunderstanding  in  a  transaction 
of  this  kind  ;  where  declarations  vaguely  made,  as  mere 
expressions  of  an  idea  entertained,  but  not  matured  into  a 
resolution,  are  very  apt  to  be  regarded  by  the  person  to 
whom  they  are  addressed,  as  positive  promises.  Experi- 
ence has  proved  that  it  is  often  difficult  to  ascertain,  even 
when  the  evidence  consists  of  correspondence,  or  other 
informal  writings,  whether  such  expressions  ever  assumed 
the  form  of  a  definite  and  unconditional  undertaking.  It 
is  therefore  only  reasonable,  that  the  law  should  require 
the  most  satisfactory  evidence,  of  which  the  nature  of  the 
case  admits,  that  a  binding  promise  of  that  character  was 
actually  intended  to  be  made  ;  before  compelling  the  prom- 
isor to  give  effect,  to  what  is  almost  invariably  a  mere  act 
of  bounty  on  his  part. 

§  682.  But  there  is  much  greater  room  for  doubt,  whether 
it  was  wise  and  just  to  require  promises  relating  to  prop- 
erty, passing  between  the  future  husband  and  wife,  to  be 
manifested  by  a  writing.     It  is  true  that,  to  some  extent, 

(h)  Sir  Ralph  Bovy's  case,  1  Ventris,  193,  24  Car.  ii;  Lavender  v.  Black- 
stone,  2  Levinz,  14G,  27  Car.  ii ;  Sir  John  Otway's  case,  cited  in  Gell  v.  Ver- 
meiiiin,  Freeman's  Chancery  Reports,  199.  And  in  the  United  States, 
Flowers  v.  Kent,  Biayton  (Vernicnt),  238,  A.  D.  1817,  before  the  Vermonl 
statute;  Dunn  v.  Tliarp,  4  Iredell's  Equity  (North  Carolinn),  7;  Montgomery 
V.  Henderson,  ?>  Jones's  Equity  (North  Carolina),  1 13  ;  Gaclcenbach  v.  Brouse, 
4  Watts  and  Sergeant  (Pennsylvania),  546. 


Ai-t.  I.]  Antenuptial  Agreements.  C75 

the  same  reasons  are  applicable  to  this  species  of  promise, 
by  which  the  policy  of  the  statute  with  respect  to  promises 
by  relatives  can  be  successfully  defended.  And  doubtless 
the  existence  of  a  right,  on  the  part  of  either  of  the  mar- 
ried couple,  to  call  upon  a  court  of  equity  to  enforce  a 
promise  made  by  the  other,  under  circumstances  so  unfa- 
vorable to  free  and  deliberate  action  as  those  attending  a 
courtship,  would  have  some  tendency  to  destroy  the  peace 
of  families,  and  would  occasionally  lead  to  injustice.  But, 
on  the  other  hand,  the  nature  of  the  matrimonial  rights 
over  property,  which  the  common  law  creates,  are  such, 
that  in  practice  the  person  who  has  any  occasion  to  exact 
or  receive  any  promise  in  relation  thereto,  is  almost  inva- 
riably the  one  of  whom  the  law  should  be  peculiarly 
tender,  by  reason  of  her  inexperience,  her  comparative 
helplessness,  and  her  proneness  to  excessive  confidence. 
And  the  books  contain  abundant  evidence,  that  in  this 
class  of  cases,  the  statute  has  generally  had  the  effect  to 
enable  those  sources  of  weakness  to  be  successfully  prac- 
ticed upon  ;  and  thus  to  promote  fraud  and  injustice. 
But  this  objection  has  now  been  removed,  in  most  of  the 
United  States,  by  acts  which  place  a  wife's  rights,  with 
respect  to  property,  at  least  upon  a  level  with  those  of 
the  husband. 

§  683.  The  clause  under  examination  applies  only  to 
"  any  agreement  made  upon  consideration  of  marriage  ;" 
and  it  is  therefore  not  applicable  to  representations^  with 
respect  to  which  the  courts  have  continued,  since  the  enact- 
ment of  the  statute,  to  administer  the  law  as  before,  not- 
withstanding that  such  representations  may  have  been 
merely  oral.  It  is  quite  evident  that  the  enforcement  of  a 
representation,  made  for  the  purpose  of  inducing  the  com- 
pletion of  a  marriage,  will  frequently  have  the  same  prac- 
tical effect  as  the  enforcement  of  an  agreement  in  considera- 
tion of  the  marriage.  Hence  the  exclusion  of  representa- 
tions from  the  operation  of  this  clause  of  the  statute,  is 
apparently  open  to  the  same  objections  which  were  inter- 
posed so  vigorously,  although  unsuccessfully,  to  their 


G76  Antenuptial  Agreements.         [Ch.  xix. 

exclusion  from  the  operation  of  the  second  clause  of  the 
same  section,  (c)  But,  in  this  class  of  cases,  those  objections 
seem  to  have  been  overlooked,  until  quite  recently;  although 
Lord  Eldon,  (who  was  conspicuously  hostile  to  the  estab- 
lished doctrine  in  the  cases  under  the  second  clause),  in 
giving  judgment  in  Ex  parte  Carr,  3  Vesey  and  Beames, 
108,  A.  D.  1814,  said  that  the  rule  laid  down  in  Pasley  v. 
Freeman,  3  Term  Reports,  51, (<^)  "has  some  authority" 
in  the  rule  established  in  this  class  of  cases.  The  doctrine 
that  the  statute  does  not  apply  to  representations,  seems 
therefore  to  have  been  settled  without  opposition. 

§  684.  Accordingly  we  find  several  cases,  where  a  person 
who  has  made  an  oral  representation,  knowing  it  to  be 
false,  upon  the  faith  of  which  a  marriage  has  taken  place, 
has  been  compelled  to  make  it  good  by  the  decree  of  a 
court  of  equity  ;  and  some  where  redress  has  been  granted 
at  law.  Indeed  it  appears  to  be  well  settled,  that  the  prin- 
ciple goes  to  the  length  of  permitting  the  husband  or  the 
wife  to  maintain  an  action  for  that  purpose,  although  the 
plaintiff  was  a  party  to  the  intended  deception,  whenever 
it  is  necessary  to  do  so,  in  order  to  prevent  injury  to  the 
innocent  party,  or  to  the  issue  of  the  marriage. 

§  685.  Thus,  in  Neville  y.  Wilkinson,  1  Brown's  Chan- 
cery Reports,  543,  A.  D.  1782,  it  appeared  that  Mr.  Neville, 
one  of  the  plaintiffs,  being  about  to  marry  the  daughter 
of  the  plaintiff  Robinson,  induced  the  defendant,  who  was 
his  agent,  to  make  out  a  schedule  of  his  debts  to  show  to 
Mr.  Robinson,  concealing  the  fact  that  he  owed  the  defend- 
ant and  another  person  a  very  large  sum  ;  and  to  represent 
to  Mr.  Robinson  that  the  schedule  contained  all  his  debts. 
Thereupon  the  marriage  took  place  ;  Mr.  Robinson  having 
previously  made  provision,  by  a  deposit  in  the  names  of 
the  trustees  under  the  marriage  settlement,  for  the  payment 
of  all  the  debts  named  in  the  schedule.  And  upon  a  bill  filed 

(c)  Chapter  iv,  article  ii. 

(d)  Ante,  §  102. 


Art.  I.]  Antenuptial  Agreements.  677 

by  Neville,  Robinson,  and  the  person  who  was  joined  with 
Robinson  as  a  trustee  in  the  marriage  settlement.  Lord 
Thurlow  granted  an  injunction  to  restrain  the  defendant 
from  proceeding  to  recover  his  debt  against  Mr.  Neville,  (e) 

§  686.  But  this  case,  and  the  others  of  the  same  general 
character,  seem  to  depend  upon  the  existence  of  a  fraud- 
ulent intent  on  the  part  of  the  person  making  the  repre- 
sentation ;  and  therefore  present  no  difficulties  in  the  way 
of  reconciling  the  principles  of  equity  with  the  provisions 
of  the  statute.  The  perplexity  arises  where  no  such  ele- 
ment was  present.  The  rule  appears  to  be  now  settled,  at 
least  in  England,  that  the  right  to  relief  does  not  neces- 
sarily depend,  even  upon  knowledge  of  the  falsity  of  the 
representation,  much  less  upon  a  fraudulent  intent.  And 
as  some  of  the  cases  have  practically  almost  effaced  the 
distinction  between  a  representation  and  a  contract,  for  the 
purpose  of  administering  equitable  relief;  questions  of 
great  difficulty  have  arisen,  where  a  relative  or  friend  of  a 
person  contemplating  matrimony,  has  made  an  oral  state- 
ment of  an  intention  to  make  a  provision  for  the  engaged 
couple  ;  and  the  marriage  has  been  consummated,  in  reli- 
ance upon  that  statement.  The  examination  of  these 
questions  will  be  deferred  to  the  next  chapter,  where  it 
can  be  more  conveniently  examined,  in  connection  with 
other  questions  growing  out  of  the  equitable  doctrine  of 
performance.  (/ ) 

§  687.  It  will  be  noticed  that  the  consideration  men- 
tioned in  the  statute  is  marriage  ;  but  from  the  necessity 
of  the  case,  the  promise  which  is  the  subject  of  an  action 


(f)  See  also  Redman  v.  Redman,  1  Vernon,  3-48,  A.  D.  1G85;  Gale  v. 
Lindo,  id.,  475  (1G87) ;  Lamlee  v.  Hanman,  2  "Vernon,  466  (1704);  Tiirton 
V.  Benson,  2  Vernon,  764  (1718);  Roberts  v.  Roberts,  3  Peere  William?,  66 
(1730);  Montefiori  r.  Montefiori,  1  W.  Blackstone,  363  (1762);  Thompson 
V.  Harrison,  1  Cox's  Chancery,  344  (1787);  Scott  v.  Scott,  id.,  366;  Palmer 
V.  Ncavc,  11  Vesey,  165  (1805). 

(/)  See  chapter  xx,  article  iii. 


678  Antenuptial  Agkeements.         [Ch.  xix. 

must  always  have  preceded  the  actual  marriage.  Gener- 
ally there  were  in  fact  mutual  promises  between  the  par- 
ties ;  a  promise  of  marriage  on  the  part  of  the  plaintiff,  (or 
the  person  from  whom  he  derives  his  cause  of  action,)  hav- 
ing accompanied  the  promise  which  he  seeks  to  enforce. 
This  happens,  not  only  when  the  promise,  which  is  the 
subject  of  the  action,  passed  between  the  future  husband 
and  wife,  but  also  when  it  consisted  of  the  agreement  of  a 
third  person  to  provide  a  marriage  portion  ;  inasmuch  as 
the  interest,  which  the  person  engaging  to  give  the  por- 
tion feels  in  the  accomplishment  of  the  marriage,  consti- 
tutes almost  invariably  his  motive  for  making  such  an 
agreement. 


For  these  reasons  the  true  meaning  of  the  stat- 
utory expression  has  been  sometimes  misunderstood, 
thereby  opening  the  door  to  errors  of  considerable  magni- 
tude. It  has  been  said  that  a  promise  to  marry  forms  the 
consideration  of  what  is  technically  called  an  antenuptial 
agreement,  and  consequently  that  such  an  agreement  is 
made  in  contemplation  of  marriage,  not  in  consideration 
of  marriage,  (p')  But  while  it  is  undoubtedly  true  that 
every  antenuptial  agreement,  so  called,  is  made  in  con- 
templation of  marriage,  the  only  legitimate  conclusion, 
to  which  that  circumstance  leads,  is  that  no  such  contract 
is  within  the  statute,  unless  it  was  also  made  in  consider- 
ation of  marriage.  And  it  is  believed  that  a  careful  ex- 
amination of  the  subject  will  show,  that  where  an  agreement 
to  do  some  act,  at  the  time  of,  or  after  the  marriage,  (as  to 
provide  a  portion,)  was  made,  in  consequence  of  a  promise 
by  the  other  party  to  marry,  the  real  consideration  was 
the  marriage,  and  not  the  promise ;  although  the  latter 
may  have  been  the  inducement  to  the  agreement. 

§  689.  This  will  be  apparent,  if  we  take  a  case  where 
there  was  no  corresponding  promise  to  marry.     There  the 

(gr)  Per  Benning,  J.,  in  Durham  v.  Taylor,  29  Georgia,  166,  cited  in  note 
to  §  720  post ;  and  see  Riley  v.  Riley,  25  Connecticut,  154,  and  comments 
thereon,  post  §§  714-716. 


Art.  I.]  Antenuptial  Agreements.  679 

promise  to  provide  a  portion  is  a  mere  proposal,  which 
takes  effect  as  a  contract,  only  when  a  consideration,  that 
is  the  marriage,  has  been  furnished  by  the  other  party. (^) 
It  is  precisely  like  a  contract  between  A  and  B,  to  the 
effect  that  A  will  pay  B  a  specified  sum  for  building  a 
certain  house.  Here  the  actual  building  of  the  house  is 
the  consideration  of  A's  promise  to  pay.  And  it  is  none 
the  less  the  true  consideration,  that  B  may  have  under- 
taken, on  his  part,  to  build  the  house  for  the  money  ;  or 
that,  in  either  case,  it  is  also  a  condition  precedent  to  B's 
right  to  maintain  an  action.  Indeed  the  contrary  hy- 
pothesis would  lead  to  the  conclusion,  that  if  property  had 
been  placed  in  the  hands  of  one  of  the  parties,  in  part  per- 
formance of  an  antenujDtial  agreement,  and  the  match 
should  afterwards  be  broken  off  by  death,  or  even  by  the 
refusal  of  either  party  to  complete  it,  the  property  could 
not  be  recovered  back. 

§  690.  With  some  inconsiderable  exceptions,  the  con- 
struction of  this  clause  has  been  in  strict  accordance  with 
the  foregoing  principles.  In  some  of  the  cases  to  be  cited 
in  the  following  pages,  contracts,  made  in  contemplation 
of  marriage,  were  excluded  from  the  operation  of  the  stat- 
ute, because  they  were  made  upon  some  consideration 
other  than  marriage,  or  in  addition  thereto.  And  on  the 
other  hand,  we  shall  cite  several  cases,  where  similar  con- 
tracts have  been  held  to  be  within  the  statute,  because 
they  were  not  founded  upon  any  such  distinct  considera- 
tion, although  it  is  to  be  inferred  that  they  were  accom- 
panied with  promises  to  marry.  This  is  evidently  the 
result  which  the  statute  aimed  to  accomplish ;  and  it  is 
difficult  to  suggest  any  form  of  words,  which  will  express 

(h)  It  has  been  held  that  a  promise  to  provide  a  marriage  portion  needs  no 
other  acceptance,  than  the  consummation  of  the  marriagi-  in  pursuance  cf  its 
terras.  Parker  v.  Serjeant,  Cases  tempore  Finch,  14G;  Moore  v.  Hart,  in 
note  to  §  691;  Greene  v.  Cramer,  2  Connor  and  Lawson,  54;  S.  C,  sub 
nom.  Saunders  v.  Cramer,  3  Drury  and  Warren,  87 ;  Luders  v.  Anstey 
4  Vesey,  501 ;  De  Beil  v.  Thomson  and  Hammersley  v.  De  Biel,  cited  post 
§§  744-747. 


680  Antenuptial  Agreements.         [Ch.  xix. 

the  idea  thus  intended  to  be  conveyed,  so  clearly  and  at 
the  same  time  so  tersely,  as  those  which  were  actually 
used. 

§  691.  It  would  seem  to  follow,  from  this  analysis  of  the 
legal  effect  of  this  species  of  agreement,  that  if  the  promise 
rested  only  upon  the  consideration  of  the  future  marriage, 
the  person  making  it  may  withdraw  it  at  any  time  before 
the  actual  celebration  of  the  marriage,  whether  it  was  in 
writing,  or  merely  verbal,  and  whether  it  was  or  was  not 
accompanied  with  a  promise  to  marry.  And  although  we 
are  not  aware  that  the  point  has  ever  been  expressly  deci- 
ded, it  has  been  assumed  in  several  cases  that  such  a  with- 
drawal will  protect  him  against  a  suit  in  equity  for  specific 
performance,  (z).  But  agreements  of  this  kind  are  of  such 
a  peculiar  and  exceptional  character,  that  in  some  cases 
equity  will  interfere  to  compel  a  specific  performance,  after 

(t)  It  was  apparently  taken  for  granted,  in  the  case  of  De  Beil  v.  Thomson, 
and  Hammersley  v.  De  Biel,  post,  §§  744-747,  that  the  father  might  have 
withdrawn  his  proposal  at  any  time  before  the  actual  marriage;  but,  under 
the  construction  which  the  court  put  upon  the  memorandum,  it  may  be 
doubted  whether  he  could  have  done  so,  after  the  Baron  and  his  brother  had 
executed  the  settlement  of  500Z.  per  annum.  In  Moore  v.  Hart,  1  Vernon, 
201,  A.  D.  1G83.  the  defendant  had  written  to  one  Mr.  Reeve,  a  relation  of 
the  plaintiff,  at  whose  house  his  daughter  was  visiting,  a  letter  promising  a 
portion,  on  the  occasion  of  her  marriage  with  the  plaintiff,  and  more  after 
his  death;  and  the  plaintiff  married  the  daughter,  in  reliance  upon  that 
letter.  But  upon  a  bill  filed  for  the  portion,  the  defendant  in  his  answer  said 
that  Mr.  Reeve  had  answered  the  letter,  to  the  effect  that  he  was  notsatisBed 
with  the  amount  which  the  defendant  proposed  to  leave  at  his  death,  and 
would  have  nothing  further  to  do  with  tiie  match ;  whereupon  the  defend- 
ant had  rencAved  a  treaty  with  another  gentleman,  which  had  been  broken 
off;  and  while  that  treaty  was  pending,  the  plaintiff  and  his  daughter  inter- 
married at  Mr.  Reeve's  house,  without  his  consent.  It  was  proved,  how- 
ever, that  Mr.  Reeve  did  not  communicate  to  the  plaintiff  the  contents  of 
his  last  letter;  and  that  after  the  defendant  had  received  it,  he  came  to  town 
purposely  about  the  match,  and  said  to  others,  with  many  imprecations, 
that  he  would  make  his  promise  good.  And  the  Lord  Keeper  (North) 
thereupon  made  a  decree  for  the  plaintiff;  though  for  the  defendant  it  was 
urged,  that  this  promise  in  writing,  being  discharged  by  a  subsequent  letter 
in  writing,  could  not  now  be  renewed  by  parol  disclosures, 


Art.  I.]  Antenuptial  Agreements.  681 

the  marriage  has  taken  place  ;  although  before  that  event 
the  promisor  had  expressly  withdrawn  his  promise,  and 
no  pecuniary  injury  would  have  ensued  to  the  promisee  if 
he  had  refused  to  complete  the  marriage.  This  jurisdic- 
tion rests,  not  upon  the  idea  that  a  general  right  to  with- 
draw is  inconsistent  with  the  legal  effect  of  the  transaction, 
but  upon  the  familiar  ground,  that  the  party  has  been 
induced,  by  his  reliance  upon  the  promise,  to  place  him- 
self in  such  a  position  that  he  cannot  be  restored  to  his 
former  condition.  The  peculiarity  of  the  application  of 
the  principle,  under  these  circumstances,  is  that  the  court 
regards  the  wound  which  his  affections  will  sustain,  by 
breaking  off  the  match,  as  sufficient  to  entitle  him  to  insist 
upon  the  performance  of  the  agreement. 

§  692.  Thus,  in  WancJiford  v.  Fotherly,  Freeman's 
Chancery,  201,  A.  D.  1694,  the  plaintiff  filed  a  bill  for  a 
portion  of  3,000?.,  to  be  paid  upon  his  marriage  with  the 
defendant' s  daughter.  It  appeared  that  a  letter,  offering 
that  portion,  was  written  by  a  friend  of  the  plaintiff,  with 
the  defendant' s  assent,  and  that  he  afterwards  agreed  to  it. 
Accordingly  there  was  a  treaty  with  the  defendant  for 
such  a  settlement;  "but  the  treaty  depending  long,  the 
young  couple  married."  "And,"  the  report  proceeds, 
"although  it  appeared  that  Mr.  Fotherly,  before  they  went 
to  church,  did  declare  that  he  would  give  them  nothing, 
and  the  statute  of  frauds  and  perjuries  was  insisted  upon, 
yet  decreed  for  the  plaintiff,  although  his  wife  is  since  dead, 
and  he  married  to  another.  And  the  Lord  Keeper"  (Lord 
Somers)  "  said,  for  his  countermand  when  they  were  ready 
to  go  to  church,  he  looked  upon  it  as  nothing,  after  the 
young  people' s  affections  were  engaged."  This  decree  was 
afterwards  afSrmed,  upon  appeal  to  the  House  of  Lords,  (y) 

(j)  The  case  is  also  reported  iicder  the  title  of  Wankford  v.  Fotherley,  in 
2  Vernon,  322,  and  as  Wankford  v.  Fotherby,  in  1  Equity  Cases  Abridged, 
22.  But  neitlier  of  these  reports  mentions  the  countermand.  Tlie  bill  was 
filed  by  the  husband,  as  administrator  of  his  deceased  wife.  The  very  short 
case  of  Douglas;  v.  Vincent,  2  Vernon,  202,  A.  D.  1G90,  has  been  supposed 
to  conflict  somewhat  with  the  principle  of  Wanchford  v.  Fotherley.  The 
86 


682  Antenuptial  Agreements.         [Ch.  xix. 

§  693.  It  must  be  acknowledged  that  this  principle  re- 
quires considerable  delicacy  in  its  application,  in  order  to 
avoid  abuses.  But  it  finds  a  very  close  analogy  in  a  simi- 
lar doctrine,  w^liich  seems  to  be  vi^ell  settled,  in  cases  where 
a  forfeiture  of  an  estate  results  from  the  marriage  of  the 
beneficiary,  without  the  consent  of  some  other  person.  It 
is  held,  that  where  such  a  consent  has  once  been  given, 
and  the  affections  of  the  young  people  have  been  permitted 
to  become  enlisted,  the  consent  cannot  be  withdrawn,  unless 
for  some  cause  which  the  court  shall  adjudge  to  be  reason- 
able. In  the  language  of  Lord  Northington,  "it  would 
otherwise  be  a  most  cruel  thing  to  suffer  young  persons  to 
contract  and  entertain  affection,  and  then  ad  libitum  with- 
draw the  consent.  "(^O 


report  of  the  case  is  as  follows:  "The  bill  being  for  l.OOOZ.,  as  promised  by 
Sir  Matthias  Vincent  with  his  niece,  by  a  letter  under  his  hand,  but  in  the 
same  letter  he  dissuaded  her  from  marrying  the  plaintiff",  yet  was  afterwards 
present  at  the  marriage,  and  gave  her  in  marriage.  In  this  case  the  court 
would  not  decree  the  payment  of  the  1,000?.,  but  left  the  plaintiff"  to  bring 
his  action  to  recover  it,  as  he  could  at  law."  It  is  possible  that  the  last  five 
words  were  intended  to  mean,  that  there  was  no  impediment  to  his  recov- 
ering the  1,000/.  at  law;  for  which  reason,  it  was  not  proper  for  him  to 
come  into  equity.  See  Chichester  v.  Cobb,  14  Law  Times,  N.  S.,  433.  It 
would  seem  that,  in  Douglas  v.  Vincent,  the  wife  must  have  died,  otherwise 
she  should  have  been  a  party.  In  Madox  v.  Nowlan,  Beatty,  632,  decided 
in  the  Irish  Court  of  Chancery,  in  1824,  Lord  Manners  referred  to  the  case 
of  "Wanchford  v.  Fotherl}',  which  had  been  pressed  upon  him  by  counsel, 
but  without  expressing  any  approbation  or  disapprobation  of  the  principle 
upon  which  it  proceeded ;  for  he  came  to  the  conclusion  that  the  defendant's 
promise,  which  had  been  withdrawn  on  the  morning  of  the  plaintiff" 's  mar- 
riage, was  conditional  by  its  terms,  and  that  the  condition  had  not  been 
performed.  Lord  Cottenham  cited  the  case  approvingly  in  his  judgment  in 
Hammersley  v.  De  Biel,  post  §§  744-747. 

(k)  Merry  v.  Ryves,  1  Eden,  1.  See  also  Lord  Strange  v.  Smith,  Ambler, 
263 ;  Campbell  v.  Lord  Netterville,  cited  in  2  Vesey,  Senior,  534 ;  Per  Lord 
Eldon,  in  Clark  v.  Parker,  19  Vesey,  12,  13;  Per  Sir  William  Grant,  in 
D'Aguilar  v.  Drinkwater,  2  Vesey  and  Beames,  225. 


Art.  II.]  Antenuptial  Agreements.  683 


ARTICLE  II. 

Hatnre  and  extent  of  the  marriage  consideration  |  what  persons  are  !entitled  to  avail  them- 

selves  of  it. 

§  694.  Our  proposed  examination  of  the  questions  pre- 
sented, in  the  cases  which  have  arisen  under  this  provis- 
ion of  the  statute,  may  be  usefully  prefaced  by  a  few- 
remarks  upon  the  nature  and  extent  of  the  consideration, 
forming  the  test  of  its  application  ;  and  a  glance  at  the 
rules  which  determine  what  persons  are  entitled  to  rely 
upon  the  marriage,  as  a  consideration  furnished  in  their 
behalf.  Such  persons  are  said  to  be  within  the  scope  of 
the  consideration. 

§  695.  The  authorities  agree  in  regarding  a  marriage  as 
fulfilling  all  the  requisites  of  a  valuable  consideration ; 
and  consequently  that  the  parties  thereto,  and  all  other 
persons  who  come  within  its  scope,  are  entitled  to  the 
most  ample  protection  which  a  court  of  law  or  equity  wiU 
give  to  purchasers  for  value,  (a)    Accordingly  it  has  been 

(a)  Lord  Coke  remarks  that  "  there  is  no  consideration  so  much  respected 
in  the  law  as  the  consideration  of  marriage,  in  respect  of  alliance  and  pos- 
terity." Coke  upon  Littleton,  9  i. ;  Thomas's  edition,  volume  1,  page  501. 
Lord  Romilly  says  that  "the  consideration  of  marriage  is  the  highest  known 
to  the  law."  Ford  v.  Stuart,  15  Beavan,  499.  Lord  St.  Leonards  also 
speaks  of  marriage  as  "  the  most  valuable  of  all  considerations."  Greene  v. 
Cramer,  2  Connor  and  Lawson,  60;  S.  C,  sub  nom.  Saunders  v.  Cramer,  3 
Drury  and  Warren,  87.  Sir  John  Stuart  says  that  "it  is  the  policy  of  the 
law  to  give  paramount  force  to  the  consideration  of  marriage."  Fraser  v. 
Thompson,  1  Giffard,  62.  And  see  to  the  same  effect,  Pcachey  on  Marriage 
Settlements,  50,  57  ;  Addison  on  Contracts,  6th  edition,  740 ;  Per  Collier,  C.  J., 
Andrews  v.  Jones,  10  Alabama,  421;  De  Barante  v.  Gott,  6  Barbour  (N.  Y.), 
492  ;  Marshall  v.  Morris,  16  Georgia,  368;  Per  Archer,  J.,  Buchanan  v.  Deshon, 
1  Harris  &  Gill  (Maryland),  292  ;  Crane  v.  Gough,  4  Maryland,  316  ;  Magniac  v. 
Thompson,  7  Peters  (U.  S.),  348 ;  Brown  v.  Carter,  5  Vesey.  862,  879.  A  nd  see 
Barrow  v.  Barrow,  2  Dickens,  504.  In  Sterry  v.  Arden,  1  Johnson's  Chancery, 
271,  Chancellor  Kent,  referring  to  a  voluntary  conveyance  to  the  female  plaint- 
iff, upon  the  faith  of  which  the  plaintiffs  had  intermarried,  said  :  "  Tiie  marriage 
was  a  valuable  consideration,  which  fixed  the  interest  in  the  grantee  against 
all  the  world;  she  is  regarded  from  that  time  as  a  purchaser,  and  as  much 


684  Antenuptial  Ageeements.         [Ch.  xix. 

held  that  if  a  person  has  been  induced  to  marry  the  grantee 
in  a  voluntary  deed,  in  consequence  of  the  credit  which  such 
grantee  may  have  gained  by  means  of  the  deed,  it  ceases  to 
be  voluntary,  and  becomes  good  against  a  subsequent  pur- 
chaser for  value.  (5)  This  rule  is  strikingly  illustrated  by 
an  English  equity  case,  where  a  father  gave  a  voluntary 
bond  to  trustees,  conditioned  for  the  payment,  after  his 
death,  of  a  sum  of  money  for  the  benefit  of  his  six  child- 
ren, in  certain  specified  proportions.  Afterwards  two  of 
the  sons  named  in  the  bond,  assigned,  in  contemplation  of 
marriage,  their  respective  portions  of  the  sum  payable  by 
the  condition  thereof,  to  other  trustees,  for  the  benefit 
of  their  intended  wives  respectively  ;  and  on  the  faith  of 
those  assignments,  the  marriages  were  contracted.  Many 
years  afterwards,  the  father  died  insolvent ;  and  upon  a 
settlement  of  his  estate,  the  trustees  to  whom  the  bond 
was  given,  were  admitted  as  specialty  creditors  to  the 
amount  payable,  by  the  condition  of  the  bond,  to  the  two 
sons  who  had  married,  (c)  So,  under  the  statute  of  the 
27th  Elizabeth,  a  grantee  in  consideration  of  marriage  may 
impeach,  as  a  purchaser  for  value,  a  prior  voluntary  grant 
of  the  same  property.  (<i) 

§  696.  The  effect  of  a  postnuptial  settlement  as  against 
the  creditors  of  the  settlor  will  be  the  subject  of  examina- 
tion in  the  next  succeeding  article.     But  it  is  an  estab- 

so,  as  if  she  had  then  paid  an  adequate  pecuniary  consideration."  And  in 
Diigan  V.  Gitlings,  3  Gill  (Maryland),  157,  Martin,  J.,  speaking  of  the  verbal 
gift  of  real  property  by  a  father  to  his  daughter,  in  contemplation  of  the 
hitter's  marriage  said :  "  The  consummation  of  the  marriage,  in  a  case  like 
tliis,  is  to  be  considered  as  equivalent  to  the  payment  of  the  purchase  money 
in  a  pecuniary  contract;  in  both  cases  the  consideration  is  discharged." 

(6)  Sugden  on  Vendors,  14th  edition,  720,  and  cases  cited;  Whelan  t». 
Whelan,  3  Cowen  (N.  Y.),  537 ;  Per  Lord  Eilenborough,  C.  J.,  in  Doe  v. 
Manning,  9  East,  69;  Sterry  v.  Arden,  1  Johnson's  Chancery  (N.  Y.),  261; 
S.  C.  on  appeal,  sub  nom.  Verplanck  v.  Sterry,  12  Johnson,  536. 

(c)  Payne  v.  Mortimer,  28  Law  Journal,  N.  S.,  Chancery,  437;  and  on 
appeal,  id.  716,  A.  D.  1859;  S.  C.  1  Gififard,  118;  5  Jurist,  K  S.,  307;  and 
on  appeal,  4  De  Gex  and  Jones,  447,  and  5  Jurist,  N.  S.,  749. 

{d)  Jordan  v.  Money,  5  House  of  Lords  Cases,  185,  cited  post,  §§  752-754. 


Art.  II.]  Antenuptial  Agreements.  685 

lished  principle  that  an  antenuptial  settlement  is  valid 
against  them,  if  the  marriage  took  place  on  the  faith  of 
it ;  all  persons  within  tlie  scope  of  the  consideration,  being 
then  regarded  as  purchasers  for  value.  This  principle  has 
been  often  applied  in  cases  where  a  settlement  has  been 
made  by  a  debtor  upon  his  intended  wife. (6^)  Of  course 
actual  fraud,  in  which  the  grantee  or  beneliciary  partici- 
pated, will  avoid  the  whole  transaction  ;  and  the  degree  of 
good  faith,  which  must  have  existed  on  the  part  of  the 
wife,  in  order  to  prevent  the  settlement  from  being  re- 
garded as  fraudulent,  has  been  the  subject  of  much  dis- 
cussion. It  has  been  intimated  that  she  would  not  be 
protected,  if  the  settlement  was  very  extravagant,  either  in 
its  terms  or  with  respect  to  the  quantity  of  the  property 
embraced  within  it.(/')    But  the  most  recent  English  cases 


(e)  Magniac  v.  Thompson,  7  Peters  (U.  S.),  348;  Nairn  v.  Prowse,  C 
Vesey,  752,  759;  Campion  v.  Cotton,  17  Vesey,  264;  Wood  v.  Jackson,  8 
Wendell  (N.  Y.),  9.  This  principle  appears  to  have  been  overlooked  in 
Page  V.  Kendrick,  10  Michigan,  300. 

(/)  In  Hardey  v.  Green,  12  Beavan,  182,  A.  D.  1849,  (S.  C,  13  Jurist, 
777;  18  Law  Journal,  N.  S.,  Chancery,  480,)  it  appeared  that  J.  B.  Irwin 
and  Elizabeth  Bevan,  a  few  hours  before  their  marriage,  executed  articles  to 
the  effect,  that  by  a  settlement  to  be  made  after  marriage,  Elizabeth's  prop- 
erty should  be  conveyed  upon  certain  trusts  for  her  benefit,  and  that  the  set- 
tlement should  contain  a  covenant  that  all  property,  to  which  the  said  J.  B. 
Irwin  or  the  said  Elizabeth  might  thereafter  become  entitled,  should  be  set- 
tled upon  the  same  trusts:.  Neither  party  had  any  property  at  that  time, 
although  Elizabeth  had  some  expectations;  and  the  husband  was  largely 
indebtetl.  In  less  than  six  months  after  tlie  marriage,  the  husband  took  the 
benefit  of  the  insolvent  act ;  his  scliedule  showing  debts  exceeding  4000Z. 
and  no  assets.  His  "  estate  and  effects,  present  and  future,"  were  thereupon 
vested  in  an  official  assignee.  About  two  years  afterwards,  iiis  brother  died 
in  India  intestate;  leaving  J.  B.  Irwin  heir  to  certain  estates,  which  were 
soon  afterwards  conveyed  by  him  upon  the  trusts  of  the  settlement.  The 
official  as.signee  having  claimed  the  property,  a  bill  was  filed  against  him, 
by  Mrs.  Irwin  and  the  trustee  under  the  settlemen;,  to  establish  the  settlement 
and  to  compel  him  to  convey.  Lord  Langdale,  Master  of  the  Roll*,  granted 
a  decree.  He  denied  the  force  of  the  defendant's  argument  that  this  cove- 
nant was  so  extravagant  and  contrary  to  public  policy,  that  it  was  neces- 
sarily fraudulent;  and  he  remarked  that  there  was  no  allegation  or  evidence 
that  the  wife,  who  married  on  the  faith  of  it,  participated  in  any  fraud.    She 


686  Antenuptial  Agreements.         [Ch.  xix. 

appear  to  have  established  the  rule  that  the  settlement  will 
be  supported,  unless  the  marriage  was  merely  a  color  for 
effecting  a  contrivance  to  defraud  the  husband' s  creditors, 
in  which  the  wife  participated.  Her  knowledge  at  the  time 
when  it  was  made,  that  he  was  in  embarrassed  circumstan- 
ces, will  not  suffice  to  defeat  it.  {g) 

§  697.  With  respect  to  the  persons  who  are  entitled  to 
be  treated  as  purchasers  for  value  in  this  class  of  cases, 
it  is  well  settled  that  the  husband  or  wife,  as  the  case  may 
be,  (or  both  when  the  settlement  was  made  by  a  third  per- 
son), and  the  issue  of  the  marriage,  are  within  the  scope 
of  the  consideration.  But  collateral  relatives,  to  whom 
the  estate  is  contingently  limited  by  the  marriage  settle- 
ment, are  in  general  regarded  as  volunteers.  However, 
the  latter  proposition  is  subject  to  some  exceptions,  most 
of  which  are  rather  apparent  than  real ;  being  in  truth 
corollaries  from  the  principal  proposition.  As,  for  in- 
stance, where  a  limitation  to  collateral  relatives,  is  inter- 
posed between  limitations  to  different  classes  of  the  issue 
of  the  marriage ;  for  then  the  ultimate  remainder  to  the 
issue  of  the  marriage,  can  be  supported  only  by  regarding 
the  intermediate  estate,  as  having  been  created  for  a  valu- 
able consideration.  There  are  also  some  instances,  where 
collateral  relatives  have  been  protected,  under  circum- 
stances which  render  it  difficult  strictly  to  reconcile  the 
ruling  with  the  doctrine  that  they  are  regarded  as  volun- 
teers ;  and  it  has  even  been  said  that  covenants  in  favor 


had  a  right  to  insist  upon  these  terms;  and  it  could  not  be  held  that  a  per- 
son cannot  enter  into  a  binding  contract  because  he  is  insolvent.  And  in  Ex 
parte  McBurnie,  1  De  Gex,  Macnaghten  and  Gordon,  441,  A.  D.  1852,  (S. 
C,  16  Jurist,  807  ;  21  Law  Journal,  N.  S.,  Bankruptcy,  15,)  the  same  gen- 
eral principle  was  recognized,  although  both  the  Lords  Justices  (Knight 
Bruce  and  Lord  Cranworth)  intimated  that  they  would  have  ruled  otherwise 
if  it  had  appeared  that  the  settlement  was  extravagant,  and  grossly  out  of 
proportion  to  the  station  and  circumstances  of  the  husband. 

ig)  Colombine  v.  Penhall,  1  Smale  and  Giffard,  228,  A.  D.  1853  ;  Fraser 
V.  Thompson,  1  Giffard,  49,  and  5  Jurist,  N.  S.,  669,  A.  D.  1859;  Bulmer  v. 
Hunter,  Law  Reports,  8  Equity,  46,  A.  D.  1869. 


Art.  II.]  Antenuptial  Agreements.  687 

of  strangers  may  be  supported,  as  coming  witliin  the  scope 
of  the  consideration.  The  subject  is  not  entirely  free 
from  perpk-xity,  and  the  authorities  are  not  always 
in  harmony  with  each  other  ;  but  its  extended  discussion 
would  be  out  of  place  here.  We  may  remark,  however, 
that  the  more  recent  cases  manifest  a  decided  tendency  to 
adhere  to  the  doctrine,  that  where  the  marriage  was  the 
only  consideration,  it  does  not  extend  to  collateral  rela- 
tives, except  in  special  cases.  (A) 


(h)  See  Sugden  on  Vendors,  14th  edition,  716  to  718;  Sugden's  Law  of 
Property,  etc.,  153  to  158;  and  Peacliey  on  Marriage  Settlements,  56  to  62; 
where  the  English  authorities  are  collected.  The  case  of  Smith  v.  Cherrill, 
Law  Reports,  4  Equity,  390,  and  36  Law  Journal,  N.  S.,  Chancery,  738, 
A.  D.  1807,  (S.  C,  15  Weekly  Reporter,  919,  and  10  Law  Times,  N.  S.,  517.) 
has  been  decided  since  those  works  were  issued.  It  was  a  suit  in  eqin'ty 
by  a  creditor,  to  compel  the  trustees  appointed  by  the  marriage  settlement 
of  the  debtor  (a  lady),  to  pay  the  plaintiff's  debt.  The  settlement  jirovided 
that  the  income  of  the  trust  property  should  be  paid  to  the  .settlor  for  life; 
and  after  her  death,  that  the  trustees  should  stand  posse.«st'd  of  the  property 
for  the  benefit  of  the  issue  of  the  marriage,  or,  in  default  of  issue,  of  the 
mother,  sister,  and  two  nieces  of  the  settlor.  One  of  the  said  nieces  was 
described  in  the  instrument  as  the  adopted  daughter  of  the  settlor,  and  it  was 
provided  that  she  should  share  equally  with  the  children  of  the  marriage. 
Upon  a  contingency,  (which  happened),  the  husband  was  to  have  an  annuity 
of  200?.,  and  the  settlor  reserved  the  right  to  leave  him  a  legacy.  The  lady 
died,  leaving  no  issue,  and  the  personalty  was  exhausted  by  the  husband's 
annuity  and  the  legacy  to  him.  Vice  Chancellor  Malins  charged  the  dfbt 
upon  the  realty,  expressing  regret  that  he  could  do  nothing  for  the  "  adopted 
child,"  but  holding  that  she  and  the  other  collaterals  must  be  treated  ns  vol- 
unteers. The  most  recent  case  is  Wollaston  v.  Tribe,  Law  Report.*,  9  Equity, 
14,  decided  by  Lord  Romilly,  Master  of  the  Rolls,  in  November,  1809.  This 
was  a  bill  to  set  as;de  certain  trusts  in  a  marriage  settlement,  and  for  a  recon- 
veyance of  the  settled  property.  In  1858,  the  plaintifl',  being  forty  one  years 
of  age,  married  Robert  Wollaston;  a  settlement  of  her  property  liaving  been 
previously  made,  first  on  the  plaintiff  for  life,  without  power  of  anticipation ; 
then  on  Robert  Wollaston  for  life;  then  on  the  children  of  the  marriage  and 
of  any  future  marriage  of  the  plaintiff;  and,  if  she  had  no  children,  tlu-n  on 
her  nephews  and  nieces.  The  husband  died  without  issue  in  1805,  and  the 
plaintiff,  not  having  remarried,  filed  her  bill  in  1868,  setting  forth  various 
circumstances,  tending  to  show  that  siie  did  not  understand  the  effect  of  the 
settlement,  in  the  event  of  her  surviving  her  husband  and  having  no  issue. 
Lord  Romilly  granted  a  decree,  saying  "that  the  only  part  of  the  settlement, 


688  Antenuptial  Agreements.         [Ch.  xix. 

§  698.  It  wilJ  be  seen,  from  this  brief  summary,  tliat 
there  is  no  necessity  of  resorting  to  any  other  considera- 
tion than  the  marriage  itself,  to  sustain  any  agreement 
made  in  contemplation  of  marriage,  or  to  determine  the 
description  of  promises  which  the  statute  designates.  In 
truth  the  high  value  placed  by  the  courts  upon  the  mar- 
riage consideration,  has  led  to  great  reluctance  in  enforc- 
ing a  statutory  provision  which  avoids  all  verbal  contracts 
founded  upon  it ;  and  this  reluctance  is  the  source  of 
nearly  all  the  perplexity  which  has  arisen  in  the  cases 
under  this  part  of  the  statute  of  frauds.  And  the 
course  of  adjudication,  under  the  second  and  third 
clauses  of  the  fourth  section  presents  this  noteworthy 
contrast ;  that  in  cases  under  the  second  clause,  there  has 
been  a  constant  struggle  to  find  something  in  the  consider- 
ation, to  withdraw  the  promise  from  the  express  words 
of  the  statute ;  whereas  in  cases  under  the  third  clause, 
the  struggle  has  been  to  find  something  outside  of  the 
consideration  to  accomplish  the  same  object. 

AKTICLE  III. 

What  contracts  are  within  this  provision,  and  vice  TMsai 

(1)  General  principles  regulating  the   application  of  the  statute  to  agree- 
ments made  in  contemplation  of  marriage. 

§  699.  The  distinction,  which  we  have  mentioned,  be- 
tween contracts  made  in  consideration  of  marriage,  and 
contracts  made  in  consideration  of  promises  of  marriage, 
is  nowhere  more  clearly  manifested,  than  in  the  ruling  that 

which  is  now  subsisting,  is  purely  voluntary  and  not  within  the  considera- 
tion of  marriage."  See  also  Story's  Equity  Jurisprudence,  8th  edition, 
§§  986,  987  ;  Merritt  v.  Scott,  G  Georgia,  563 ;  Lafitte  v.  Lawton,  25  Georgia, 
305 ;  Gorin  v.  Gordon,  38  Mississipi,  205 ;  Bleeker  v.  Bingham,  3  Paige 
(K  Y.),  246  ;  King  v.  Whitely,  10  Paige,  465 ;  Eaton  v.  Tillinghast,  4  Ehode 
Island,  276.  In  Loxley  v.  Heath,  1  De  Gex,  Fisher  and  Jones,  489,  Lord 
Campbell  explained  Hammersley  v.  De  Biel  (post  §  744  et  seq.,)  as  holding, 
upon  one  of  the  points  presented,  that  an  antenuptial  contract  could  not  be 
varied,  after  marriage,  to  the  prejudice  of  the  children  of  the  marriage.  It 
would  seem  that  this  doctrine  goes  to  the  extent  of  protecting  such  children, 
t>efore  their  births. 


Art.  III.]  Antenuptial  Agreements.  689 

the  statute  of  frauds  docs  not  prevent  an  action  at  law 
from  being  maintained,  to  recover  damages  f(ir  the  breacli 
of  a  verbal  promise  to  marry  tlic  ])laintift".  This  was  one  of 
the  earliest  questions  which  arose  under  the  aet ;  and  it 
was  contended,  with  considerable  plausibility,  that,  where 
there  were  mutual  promises  to  marry,  inasmuch  as  each 
of  them  formed  the  consideration  of  the  other,  both  were 
agreements  "in  consideration  of  marriage."  Inde»'d,  this 
doctrine  received  at  lirst  the  sanction  of  the  courts.  In 
PhU.pot  v.  Wallet,  Freeman,  541,  and  3  Levinz,  05,  A.  I). 
1082,  the  Court  of  Common  Pleas,  after  two  arguments, (a) 
gave  judgment  for  the  defendant,  in  an  action  upon  a  prom- 
ise to  marry,  which  was  found  by  a  special  verdi(;t  to  have 
been  made,  without  writing,  after  June  24,  1077.  Wynd- 
ham,  J.,  thought  that  the  verbal  promise  was  good,  "be- 
cause this  promise  is  for  the  marriage  itself,  and  not  made 
in  consideration  of  marriage  for  some  collateral  matter. 
But,"  the  report  proceeds,  "the  other  three  judges  were 
against  him,  that  it  was  within  the  words,  the  meaning  and 
mischief  of  the  statute,  and  as  much  a  catching  promise 
as  any  other  that  the  act  intended  to  prevent." 

§  700.  Notwithstanding  the  weight  of  authority  which 
this  case  was  entitled  to  command,  it  seems  to  have  been 
afterwards  silently  disregarded,  at  least  in  the  King's 
Bench  ;  for  in  one  of  many  reports  of  Harrison  v.  Caye^ 
decided  in  that  court  A.  D.  1098,  ((^)  where  the  question 
was  whether  a  woman  is  liable  to  an  action  for  a  breach 
of  promise  of  marriage,  it  is  stated  that  uj)on  the  trial, 
Chief  Bart)n  Ward  ruled  that  the  action  could  \w  main 
tained  without  writing  ;  and  counsel  said,  during  the  argu 
ment,  that  Chief  Justice  Holt  had  frequently  ruled  that  the 
statute  intended  only  agreem<>nts  to  ])ay  man-iage  poitioiis, 
which  the  latter,  (who  was  then  on  the  bench,)  did  not  deny. 

(a)  The  first  argument  is  reported  in  Sl:inner,  24. 

{b)  1  Lord  Raymond,  38G.     Tlie  otiier  reports  of  the  same  case  do  not 
mention  this  point.     Lord  Ilolt,  456  ;  Cartliew,  407;   1  Salkcld,  24  ;  5  Mod- 
ern, 4]  1 ;  12  Modern,  214. 
87 


690  Antenuptial  Agreements.  [Cli.  xix. 

And  Pliilpot  V.  Wallet  is  regarded  as  liaving  been  defini- 
tively overruled,  in  the  court  wliere  it  was  decided,  by 
CorJc  V.  BaJcer,  1  Strange,  34,  A.  D.  1716.  There  the 
plaintiff  brought  an  action  in  assumpsit  in  the  Common 
Pleas,  setting  forth  in  her  declaration  the  usual  allega- 
tions, showing  a  breach  of  a  promise  to  marry  her  ;  and 
upon  non  assumpsit  pleaded,  she  had  a  verdict.  Where- 
upon the  defendant  moved,  in  arrest  of  judgment,  "that 
this  parol  promise  is  not  good  in  law."  The  motion  was 
denied ;  the  report  giving  no  statement  of  the  reasoning 
of  the  court,  but  only  that,  ' '  after  argument,  it  was  held 
that  this  is  not  within  the  statute  of  frauds  and  perjuries, 
which  relates  only  to  contracts  in  consideration  of  mar- 
riage," and  thatP7^^7jp(9^  v.  Wallet  has  been  "contradicted 
by  later  resolutions." 

§  701.  Although  the  declaration  in  this  case  did  not  show 
that  the  promise  was  verbal,  the  doctrine  that  an  action 
will  lie  for  breach  of  a  verbal  promise  of  marriage  (unless, 
by  its  terms,  it  is  not  to  be  performed  within  the  year),  has 
been  since  generally  acquiesced  in,  and  is  now  definitively 
settled,  (c)  And  the  express  exceptions  of  such  promises 
from  the  operation  of  this  provision,  which  are  to  be  found 
in  many  of  the  American  re-enactments  of  the  fourth  sec- 
tion, are  merely  indications  of  superfluous  caution,  {d ) 

§  702.  But  the  ruling  attributed  to  Chief  Justice  Holt, 
in  Harrison  v.  Cage,  that  this  clause  of  the  statute  is 
confined  to  agreements  to  pay  marriage  portions,  is  not 

(c)  Bacon's  Abridgment,  title  "Agreement,"  ch.  3;  per  Bland,  Chancellor, 
in  Ogden  v.  Ogden,  1  Bland  (Maryland),  287;  Clark  v.  Pendleton,  20  Con- 
necticut, 495 ;  per  Lord  Hardwicke,  Chancellor,  in  Atkins  v.  Farr,  2  Cases  in 
Equity  Abridged,  248 ;  Derby  v.  Phelps,  2  New  Hampshire,  515. 

(d)  The  same  ruling  has  been  made  under,  the  provisions  of  article  2308 
of  the  Civil  Code  of  Louisiana  (ante,  page  46),  in  Morgan  v.  Yarborough, 
5  Louisiana  Annual  Reports,  316,  A.  D.  1850,  where  Slidell,  J.,  in  pronounc- 
ing judgment,  said  that  verbal  promises  of  marriage  were  sufficient  by  the 
Roman  law.  He  added,  that  the  same  rule  now  prevails  in  France,  although, 
in  some  parts  of  that  country,  there  was  formerly  a  statute  requiring  them 
to  be  in  writins:. 


Art.  III.]         Antenuptial  Agreements.  091 

strictly  correct. (c)  It  embraces  all  agrecMiients  between 
the  future  husband  and  wife,  or  between  either  of  tliem 
and  any  other  person,  the  consideration  of  wliicli  was  the 
completion  of  the  contemplated  marring*^ ;  whereby  any 
riglits  will  b(3  acquired,  or  any  liabilities  eicated,  after  the 
marriage,  except  such  as  legally  How  fiom  the  matrimo- 
nial relation. 

§  703.  Thus  in  a  New  York  chancery  case,  In  the  matter 
of^VilloKfjJihy,  11  Paige,  257,  A.  T).  1844,  a  petition  was 
presented  by  the  wife  of  a  lunatic,  to  amend  an  order  of 
reference  directing  an  inquiry  as  to  the  sum  proper  to  be 
allowed  to  the  wi^fe  as  the  committee  of  the  lunatic's  person, 
for  his  and  her  support,  so  as  to  include  an  allowance  for 
the  petitioner's  daughter  by  a  former  husband;  on  the 
ground  that  by  a  verbal  antenuptial  agreement,  the  lunatic 
liad  agreiKl  that  the  daught(U",  who  was  twenty  one  years 
of  age,  should  reside  in  his  family  and  be  suppoi'ted  by 
him.  The  application  was  denied  by  the  Chancellor, 
partly  upon  the  ground  that  the  evidence  was  not  suffi- 
cient to  establish  the  antenuptial  agreement ;  but  also 
because  "  the  statute  is  imperative  that  every  agreement, 
promise,  or  undertaking,  made  upon  consideration  of  mar- 
riage, except  mutual  promises  to  marry,  shall  be  void,  if 
not  in  writing,  and  subsciibed  by  the  party  to  be  charged 
therewith."  He  added  :  "No  claim  for  the  support  of  the 
step-daughter  can  therefore  be  founded  u]ion  the  supposed 
agreement  stated  in  the  petition  ;  and  the  lunatic  is  not 
bound  to  support  her  in  any  way."  He  therefore  consid- 
ered the  application  as  addi-essed  to  the  discretion  of  the 
court ;  which,  he  concluded,  ought  not  to  be  exercised  so  as 
to  grant  the  prayer  of  the;  petition,  having  n^gard  to  the 
amount  of  the  property,  the  claims  of  other  persons,  the 

(e)  In  Jor^en  v.  Money,  5  House  of  Lords  Case?,  185,  counsel,  arguendo, 
referred  to  Holt's  supposed  ruling;  whereupon,  Lord  Chancellor  Cranworth 
Answered  (p.  207):  "That  cannot  be  true.  It  cannot  be  to  pay  marriage 
portions:  it  may  be  to  enter  into  marriage  settlements. 


692  Antenuptial  Agreements.         [Ch.  xix. 

supposed  wishes  of  the  lunatic,  if  he  had  been  in  his  right 
mind,  and  all  the  other  circumstances  of  the  case.(/') 

§  704.  But  it  is  evident  that  the  statute  will  not  avoid  an 
oral  agreement,  merely  because  a  contemplated  marriage 
constituted  the  inducement  to  its  execution,  provided 
its  obligatory  character  did  not  depend  upon  the  subse- 
quent completion  of  the  marriage.  Thus  in  Jorden  v. 
Money,  5  House  of  Lords  Cases,  185,  A.  D.  1854,  (,^)  the 
plaintiflf  founded  his  title  to  relief,  partly  upon  an  alleged 
verbal  agreement  between  the  plaintiff's  father  and  the 
female  defendant,  made  in  contemplation  of  the  expected 
marriage  of  the  plaintiff  to  a  young  lady  not  a  party  to 
the  agreement ;  and  with  a  view  to  aid  in  the  provision  to 
be  made  for  the  young  couple.  The  terms  of  the  agree- 
ment were,  substantially,  that  the  defendant  would  never 
enforce  a  bond  and  warrant  of  attorney,  which  she  held 
against  the  plaintiff;  but  would  and  did  abandon  the  debt; 
and  in  consideration  thereof,  the  plaintiff's  father  would 
desist  from  his  expressed  intention  to  settle  upon  the 
plaintiff,  as  a  marriage  portion,  certain  real  property,  of 
which  he  had  formerly  made  a  gift  to  the  defendant ;  so 
that  the  latter  should  continue  in  the  possession  and  en- 

(/)  In  Hair  v.  Hair,  10  Richardson's  Equity  (South  Carolina),  163, 
A.  D.  1858,  the  plaintiff  filed  a  bill  against  her  husband  for  alimony,  alleging, 
as  one  ground  for  relief,  that  as  a  precedent  condition  to  the  marriage,  he 
had  promised  that  he  would  never  remove  the  plaintiff  from  the  State,  or 
the  vicinity  of  her  relatives  and  friends,  without  her  consent;  that  in  violation 
of  that  agreement,  he  had  attempted  to  compel  her  to  remove  with  him  to 
Louisiana ;  and  on  her  refusing  to  do  so,  he  had  abandoned  her,  and  removed 
thither  with  his  slaves,  etc.  The  court  below  held,  that  although  this  agree- 
ment was  not  in  itself  a  basis  for  relief,  it  might  be  resorted  to  as  an  aggra- 
vation of  the  defendant's  conduct  in  other  particulars,  and  granted  a  decree 
for  alimony.  But  this  was  reversed  by  the  Court  of  Appeals.  No  refer- 
ence was  made  in  the  appellate  court,  to  the  effect  of  the  statute  of  frauds 
upon  the  promise,  which  was  adjudged  to  be  void,  as  an  attempt  to  interpo- 
late into  the  marriage  contract  a  "condition  in  abridgment  of  the  husband's 
lawful  authority  over  her  person,  or  his  claim  to  her  obedience. 

(7)  S.  C,  23  Law  Journal,  N.  S.,  Chancery,  865;  it  is  cited  again  upon  the 
other  point,  post  §§  752-754. 


Art.  III.]  Antenuptial  Agreements.  093 

joyment  of  the  property,  without  nioh^station.  Lord 
Cranworth,  speaking  of  this  agreement,  said :  "And  I  may 
say  in  passing,  that  it  a])])ears  to  me  tliat  tlie  allusion 
which  was  made  in  the  course  of  the  ai'gument  to  the  stat- 
ute of  frauds  in  such  a  case  is  wholly  ina])plicabh' ;  it 
would  not  apply  at  all.  The  contract  sought  to  be  enforced 
against  Mrs.  Jorden,  would  \w  a  contract  not  to  su(^  upon 
a  certain  bond,  that  is  not  within  the  statutes  of  frauds. 
If  there  was  a  valid  consideration  for  that  contract,  unques- 
tionably she  was  bound  to  perform  it."  Lord  St.  Leonards 
expressly,  and  Lord  Brougham  impliedly,  assent<'d  to  this 
ruling  upon  the  law  of  the  case  ;  but  it  was  lield  by  two 
of  their  lordships  against  the  oj)inion  of  the  third,  that  the 
evidence  was  not  sufficient  to  prove  the  making  of  the 
agreement. 

§  705.  One  of  the  questions  presented  in  the  very  com- 
plicated case  of  Andrews  v.  Jones,  10  Alabama,  400, 
A.  D.  1846,  was  disposed  of  upon  substantially  the  same 
principle.  There  it  apjwared  that  before  th»'  marriage  of 
the  defendant  Walker,  to  the  daughter  and  only  child 
of  Mrs.  Jones,  another  defendant,  the  daughter's  share 
of  the  personal  property  of  her  deceased  father  had  been 
lost  by  injudicious,  and  apparently  unauthorized  invest- 
ments, made  by  her  mother,  who  was  her  guardian  ;  and 
that  the  latter  had  no  part  of  the  property  in  her  posses- 
sion, except  six  slaves,  which  she  continued  to  retain, 
although  the  daughter  had  reached  her  majority.  The 
mother  had  kept  no  account  of  the  daughter's  expensi^s, 
and  it  was  said  that  if  the  losses  and  expenses  should  be 
allowed  to  her,  she  would  owe  her  daughter  little  or 
nothing.  It  was  thereupon  agreed  between  Mrs.  Jones, 
her  daughter,  and  the  defendant  Walker,  "previous  to 
the  marriage  of  the  two  latter,  and  in  consideration  there- 
of," that  the  daughter  and  her  intended  liusband  would 
never  call  the  mother  to  an  account;  "that  the  six:  slaves 
should  be  conveyed  to  her ;  and  that  she  should  hold  them 
and  the  estate  of  her  daughter  in  absolute  right."  After 
the  marriage,  the  defendant  Walker  made  a  bill  of  sale  of 


694  Antenuptial  Agreements.         [Ch.  xix. 

the  slaves  to  Mrs.  Jones,  who  had  continued  to  retain  the 
possession.  About  five  years  afterwards,  the  complain- 
ants recovered  a  judgment  against  Walker ;  and  an  execu- 
tion having  been  returned  unsatisfied,  they  filed  this  bill 
to  reach  the  slaves  and  other  estate  of  his  wife,  insisting 
that  they  were  entitled  to  an  accounting  from  Mrs.  Jones. 
The  court  below  made  a  decree  dismissing  the  bill,  which 
was  affirmed  upon  error.  Collier,  C.  J.,  delivering  the 
opinion  of  the  Supreme  Court,  said  that  the  statute  of 
frauds  could  not  impair  the  effect  of  the  transaction  be- 
tween Mrs.  Jones,  her  daughter,  and  Walker  ;  because,  if  it 
was  a  contract,  it  was  executed  at  the  time  when  it  was 
made  ;  except  perhaps  as  to  the  six  slaves,  and  as  to  them 
it  was  subsequently  executed.  And  he  also  said  that  in- 
asmuch as  the  mother-in-law  was  not  in  actual  possession 
of  any  of  her  daughter's  property,  except  the  slaves,  it 
was  immaterial  whether  the  legal  proposition  insisted  on 
by  the  plaintiffs,  that  the  possession  of  a  guardian  is  in 
law  the  possession  of  the  ward,  even  after  the  latter  has 
attained  majority,  was  sound  or  otherwise ;  because  the 
daughter  and  her  intended  husband  relinquished  the  entii'e 
estate  to  Mrs.  Jones.  This  disclaimer  of  title  and  interest, 
if  it  did  not  operate  as  a  release,  prevented  her  possession 
of  any  part  of  the  estate  from  being  transferred  by  con- 
struction of  law  to  the  daughter,  or  after  the  marriage  to 
Walker.  Consequently  the  wife' s  equitable  interest  had 
never  been  reduced  to  possession  by  the  husband  ;  and  in 
this  case  her  equity  was  superior  to  that  of  the  plaintiffs. 

§  706.  It  seems  also  that  the  mere  fact  that  an  agreement 
was  to  be  fulfilled,  upon  the  happening  of  the  marriage  of 
one  of  the  parties,  wUl  not  bring  it  within  the  statute,  if  it 
was  founded  upon  a  distinct  consideration  unconnected 
therewith.  Although  made  in  contemplation  of  marriage, 
such  an  agreement  is  not  one  made  upon  consideration  of 
marriage.  Thus  in  Peter  v.  Compton,  Skinner,  353,  and 
Lord  Holt,  326,  A.  D.  1693,  (^)  the  question  was  whether 

(/O  S.  C,  Comberbach.  463. 


Art.  III.]         Antenuptial  Agreements.  696 

an  action  would  lie  upon  a  verbal  undertakinf?,  which  is 
stated  to  have  been  "an  agreement  in  which  the  defendant 
promised,  for  one  guinea,  to  give  the  ])hiiiitiff  so  many  at 
th«>  day  of  his  marriage  ;''  and  it  was  held  that  it  was  not 
within  the  Statute.  However  the  brief  reports  of  the  case 
indicate  that  the  only  ])oint  taken  and  discussed,  was 
whether  the  promise  was  witliin  the  lifth  (clause  of  tins 
section,  "for,"  the  reports  say,  "the  marriage  did  not 
happen  within  a  year." 

§  707.  For  obvious  reasons,  most  of  the  litigation  which 
has  arisen  upon  agreements  made  in  consideration  of  mar- 
riage, has  been  of  an  equitable  character  ;  and  hence  the 
application  of  the  statute  to  such  agieements  has  been 
settled  almost  exclusively  by  the  determination  of  courts 
of  equity.  It  will  be  most  convenient  to  consider  many  of 
the  cases,  in  connection  with  the  principles  reguhiting  the 
administration  of  relief  in  that  great  branch  of  equity 
jurisprudence,  the  specific  performance  of  contracts ;  the 
questions  arising  under  the  statute  having  been  generally 
presented,  either  by  a  suit  brought  for  the  specific  per- 
formance of  some  verbal  agreement,  which  was  apparently 
within  its  terms  ;  or  by  an  answ«^r  interposed  to  a  bill  for 
equitable  relief,  wherein  the  defendant  insisted  upon  the 
right  to  such  a  performance,  as  a  defence  to  the  plaintiflf'  s 
claim.  The  next  chapter  will  be  exclusively  devoted  to 
that  subject,  and  the  reader  will  find  there  many  cases 
illustrating  the  description  of  agreements,  which  the  lan- 
guage of  the  statute  embraces.  The  cases  which  follow, 
although  most  of  them  involve  questions  of  that  desci'ip- 
tion,  chiefiy  turned  upon  the  form  and  charactei-  of  the 
agreement ;  the  principal  point  at  issue  being  whether 
these  were  such,  as  to  render  the  statute  applicable  in  the 
first  instance. 


(2)  Cases  where  the  agrecmcnl  v>as /oumled  upon  Home  distinct  consideration, 
in  addition  to  that  of  marriage, 

§  708.  Questions  of  considerable  nicety  sometimes  arise, 
when  a  party  founds  his  title  to  equitable  relief,  upon  an 


Antenuptial  Agreements.         [Cli.  xtx. 

antenuptial  agreement,  the  consideration  of  wliicli  was 
not  only  the  future  marriage,  but  also  some  distinct  act 
in  addition  thereto,  which  has  been  performed  by  him, 
or  by  the  person  from  whom  he  derives  his  right  of 
action.  It  is  quite  clear  that  if  the  additional  consider- 
ation was  of  such  a  character,  that  its  performance  would 
entitle  the  party  to  the  relief  which  he  seeks,  if  the  mar- 
riage consideration  had  not  been  made  a  part  of  the 
contract,  the  statute  will  interpose  no  obstacle  to  his  ob- 
taining a  decree.  In  such  a  case,  the  right  to  relief  results 
from  the  fact,  that  the  statute  does  not  make  agreements 
in  consideration  of  marriage  illegal,  but  only  prevents 
their  enforcement ;  (/)  hence  the  party  is  at  liberty,  for  the 
purpose  of  taldng  the  case  out  of  the  statute,  to  pass  over 
that  part  of  the  consideration  which  consisted  of  the  mar- 
riage, and  rely  upon  the  performance  of  the  additional 
consideration.  But  it  often  happens  that  the  distinct  con- 
sideration was  so  intimately  connected  with,  and  depend- 
ant upon  the  marriage  consideration,  that  the  two  are 
incapable  of  any  separation  which  will  enable  the  former 
to  stand  without  the  aid  of  the  latter.  The  principle  which 
governs  such  cases  is  quite  obscure,  and  has  never  been 
clearly  defined  in  the  books.  Indeed  we  doubt  whether  the 
cases  admit  of  any  distinction  between  the  two  considera- 
tions ;  for  those  which  appear  to  have  been  well  decided 
rested  upon  a  distinct  act  of  performance  of  the  entire 
agreement,  which  applied  quite  as  pointedly  to  the  mar- 
riage consideration,  as  to  the  supposed  additional  consid- 
eration ;  and  it  is  well  settled  that  such  performance  will 
take  the  case  out  of  the  statute,  without  reference  to  the 
question  whether  there  were  two  separate  considerations. 

§  709.  The  doctrine,  that  a  distinct  act  of  performance 
will  take  an  antenuptial  agreement  out  of  the  statute,  was 
recognized,  but  without  specifying  the  characteristic  feat- 

(f)  The  principle  is  the  same  if  there  was  no  distinct  consideration  for  the 
antenuptial  agreement,  but  such  a  consideration  was  furnished  after  the  mar- 
riage.    Sugden  on  Vendors,  14th  edition,  p.  718. 


Art.  III.]         Antenuptial  Agreements.  697 

iires  of  the  act  wliicli  will  suffice  for  that  puiiJOHe,  in  a 
dictum  of  Lord  Macclesfield,  given  in  one  of  the  reports 
of  Lady  Montacute  v.  3faxwcU,  the  leadinu;  case  under 
this  provision  of  tlie  statutt; ;(,/)  but  it  was  more  clearly 
expounded  in  another  case  of  almost  equal  celebrity,  but 
of  comparatively  ret'ent  date,  llamniersley  v.  Dc  Bitl^ 
12  Clark  and  Finnelly,  4.5,  A.  D.  184.5.(/t)  A  summary  of 
each  of  these  cases  will  be  given  in  the  following  chapti'r ; 
where,  however,  Ilammersley  v.  De  Bicl  is  cited,  rather  in 
connection  with  certain  observations  of  tlu?  judge's,  which 
were  not  strictly  necessary  to  the  decision,  than  so  as  fully 
to  show  the  grounds  of  the  judgment  upon  the  merits. 
Indeed  it  must  be  acknowledged  that  the  latter  under- 
taking would  be  one  of  some  difficulty  ;  inasmuch  as  the 
English  courts  and  elementary  writers  have  not  yet  ceased 
to  dispute,  touching  w^hat  was  really  decided  in  that  now 
noted  case.  But  it  is  generally  conceded,  that  the  judg- 
ment established  one  proposition  directly  in  point  upon 
the  present  subject  of  inquiry  ;  namely,  that  the  execution 
of  the  instrument  by  the  plaintiff' s  father  and  uncle,  by 
which  a  jointure  of  500Z.  per  annum  was  secured  to  the 
intended  wife  upon  the  family  estate  in  Mecklenburg,  was 
a  distinct  act  of  performance  of  the  proposals  contained 
in  the  memorandum,  in  addition  to  the  marriage ;  wliicli 
entitled  the  plaintiff  to  insist  upon  performance  of  so 
much  of  the  proposals,  as  the  t^^stator  had  not  jierfoniied 
during  his  life  time.  This  ap^iears  to  be  the  result  of  the 
opinions  delivered,  conceding  that  the  proposals  contained 
in  the  memorandum  constituted  a  contract  within  the 
meaning  of  this  clause  of  the  statute  ;  and  without  regard 
to  the  q\iestion,  whether  there  was  a  sufficient  signature  to 
the  memorandum,  either  directly  or  through  the  medium 
of  the  testator's  subsequent  letter,  to  satisfy  the  require- 
ments of  the  subsequent  poriion  of  the  fourth  section. 
And  it  will  be  noticed,  not  only  that  this  settlement  was 
of  no  effect,  without  the  subsequent  completion  of  the 

(y)  Precedents  in  Chancery,  526.     Tlie  remark  referred  to  is  copied  in  the 
note  to  §  722,  post. 

Qi)  See  post,  §§  744-747. 
88 


698  Antenuptial  Ageeements.         [Cli.  xix. 

marriage ;  but  tliat  tlie  annuity  was  not  to  commence  till 
after  the  termination  of  the  marriage,  and  only  in  case 
the  intended  wife  survived  her  husband,  a  contingency 
which  did  not  in  fact  occur. 

§  710.  In  Satterthwaite  v.  Emley,  3  Green's  Chancery 
(New  Jersey),  489,  A.  D.  1845,  Chancellor  Haines  expressed 
the  opinion  that  a  distinct  act  of  performance  by  the  wife, 
after  the  marriage,  on  the  faith  of  the  antenuptial  verbal 
promise,  would  enable  her  to  sustain,  as  a  purchaser,  the 
husband' s  performance  of  the  same  agreement  in  her  favor, 
even  against  his  creditors ;  provided  she  could  establish 
the  antenuptial  promise  by  sufficient  evidence.  The  bill 
was  filed  by  the  trustee  of  the  wife  against  the  husband 
and  his  judgment  creditors.  It  alleged  that  the  husband 
and  wife  made  an  antenuptial  agreement,  to  convey  the 
wife' s  real  and  personal  property,  upon  certain  trusts  for 
her  benefit ;  that  after  the  marriage,  they  conveyed  the 
real  estate  to  the  husband' s  son  by  a  former  marriage,  who 
immediately  reconveyed  it  to  his  father  ;  this  being  a  tem- 
porary arrangement,  pending  the  selection  of  a  trustee, 
made  in  consequence  of  the  husband' s  representations  to 
his  wife,  that  he  would  otherwise  derive  no  benefit  from 
her  property  in  case  of  her  death ;  and  that  afterwards 
they  united  in  a  deed  of  trust  to  the  complainant,  in  con- 
formity with  the  antenuptial  agreement  and  reciting  the 
same ;  but  that  meanwhile  the  lien  of  the  judgment  at- 
tached, &c.  The  Chancellor  decreed  that  the  trust  deed 
should  stand,  as  against  the  husband  and  all  claiming 
under  him,  but  not  against  the  creditors  ;  dismissing  the 
bill  as  to  the  latter,  on  the  ground  that  the  evidence,  (which 
consisted  of  the  recitals  in  the  deed  and  the  husband's 
postnuptial  declarations),  were  not  sufficient  to  establish 
the  antenuptial  agreement  as  against  them.  But  he  said 
that  if  the  evidence  had  been  sufficient,  he  would  have 
inclined  to  give  validity  to  the  settlement,  because  "such 
settlement  could  not  be  considered  voluntary,  but  upon 
a  good  and  valuable  consideration,  to  wit,  the  marriage, 
and  the  conveyance  of  all  the  wife's  estate.' 


Art.  iii.l  Antenuptial  Agkeements.  699 

§  711.  And  in  Dygcrt  v.  Remerschnider^  32  New  York, 
629,  A.  D.  1865,  the  New  York  Court  of  Appeals  marked 
out  very  clearly  and  satisfactorily,  the  distinction  between 
a  verbal  agreement  in  consideration  of  marriage  only,  and 
one  where  there  was  an  additional  consideration,  ])erform- 
ance  of  which  would  of  itself  entitle  the  party  to  relief, 
and  which  was  connect<'d  with  the  marriage  only  because 
its  performance  depended  upon  the  accomplishment  of 
the  latter.  This  was  an  action  brought  against  George 
Remerschnider  and  his  wife  Catharine,  by  a  judgment 
creditor  of  George,  to  set  aside  a  conveyance  of  real  estate, 
made  by  him  to  his  wife,  through  an  intermediate  grantee. 
It  appeared  that  in  1854,  George  and  Catharine  intermar- 
ried ;  having  previously  made  an  oral  agreement,  by  tlie 
terms  of  which  the  parties  were  to  intermarry,  and  Catha- 
rine was  to  pay  the  debts  which  George  then  owed,  and' 
he  was  to  convey  to  her  the  premises  in  question.  Tlie 
amount  of  his  debts  was  about  equal  to  the  value  of  the 
property  ;  and  after  the  marriage,  she  paid  them  in  full ; 
first  applying  thereto  certain  moneys  which  she  owned  at 
the  time  of  her  marriage,  and  after\j'ards,  from  time  to 
time,  other  moneys,  which  she  earned  by  working  at  her 
trade,  with  the  assent  of  her  husband.  (/^)  The  latter  fre- 
quently promised  to  convey  the  property  to  her  ;  but  neg- 
lected to  do  so  till  1861,  after  the  commencement  of  the 
action,  in  which  the  plaintiff  recovered  his  judgment. 
The  debt  to  the  plaintift'  was  contracted  in  1860  ;  and,  as  it 
is  to  be  inferred  from  a  statement  in  one  of  the  opinions, 
after  Catharine  had  paid  all  her  husband' s  debts,  existing 
at  the  time  of  the  marriage.  TIk^  com])laint  was  dismissed 
at  special  term  ;  and  the  plaintiff  appealed  to  the  g<Mieral 
term,  where  the  judgment  was  reversed,  and  a  new  trial 
ordered.     The  defendants  then  appealed  to  the  Court  of 


(J)  According  to  the  married  woman's  acts,  then  in  force  in  New  York, 
the  moneys  which  she  owneil  at  the  time  of  her  marriage,  were  Catharine's 
separate  property;  but  her  earnings  after  marriage  belonged  to  iier  liusband. 
It  was  also  provided  tiiat  all  contracts  made  between  persons  in  contempla- 
tion of  marriage,  should  remain  in  force,  after  the  marriage  had  taken  place. 


700  Antenuptial  Agreements.         [Cli.  xix. 

Appeals,  where  the  last  mentioned  order  was  reversed,  and 
the  original  judgment  affirmed.  The  decision  of  the  Court 
of  Appeals,  as  far  as  this  question  was  involved,  was  put 
upon  the  ground,  that  there  was  a  consideration  for  the 
contract,  entirely  independent  of  the  marriage,  perform- 
ance of  which,  hy  the  wife,  was  sufficient  of  itself  to  en- 
title her  to  relief ;  so  that  the  husband  had  really  done 
only  what  he  might  have  been  compelled  to  do,  by  a  court 
of  equity,  upon  her  application,  (m) 

(m)  Three  opinions  in  favor  of  a  reversal  were  delivered  in  the  Court  of 
Appeals.  Davis,  J.,  said  that  the  real  question  was  whether  Catharine,  after 
paying  her  husband's  debts,  had  any  rights  which  a  court  of  equity  would 
recognize.  That  she  had  none,  based  solely  upon  the  consideration  of  mar- 
riage, because  the  statute  of  frauds  avoids  an  oral  agreement  founded  upon 
that  consideration ;  so  that  the  conveyance  could  not  be  sustained,  against 
the  plaintiff,  as  the  consummation  of  an  agreement  based  upon  an  executed 
promise  of  marriage.  But  the  agreement  had  another  consideration,  suffi- 
cient to  uphold  it,  after  its  execution  without  any  fraudulent  intent,  namely, 
Catharine's  promise  to  pay  her  husband's  debts,  and  her  actual  payment  of 
them.  The  force  of  this  contract  was  preserved,  notAvithstanding  the  mar- 
riage, by  the  married  woman's  acts.  She  performed  it,  partly  with  means, 
to  which  she  had  exclusive  title,  and  partly  with  means,  which  were  in  sub- 
stance the  gift  of  her  husband  to  her,  namely  her  own  earnings.  He  had 
a  right  to  give  these  to  her,  as  against  a  creditor  whose  debt  was  contracted 
long  afterwards.  And  he  would  have  had  no  right  to  deny  that  she  had 
fully  performed  her  agreement,  on  the  ground  that  he  had  given  her  the 
money  with  which  she  did  so.  She  was  therefore  entitled  to  a  conveyance 
before  the  plaintiff's  debt  was  contracted;  and  he  had  done  only  what  he 
was  bound  to  do,  by  making  the  conveyance  to  her.  Her  equity  was  prior 
to  the  plaintiff's;  and  it  ripened  into  a  title,  before  the  plaintiff  acquired  a 
lien.  Wright,  J.,  said  that  even  if  the  conveyance  was  voluntary,  the  plaint- 
iff, although  an  existing  creditor  of  the  grantor,  was  not  entitled,  (under  the 
provisions  of  the  New  York  statute  against  fraudulent  conveyances),  to  set  it 
aside,  unless  it  was  fraudulent  in  fact;  and  there  wasno  finding  to  the  effect 
that  it  was  made  with  a  fraudulent  intent,  or  any  proof  of  such  an  intent. 
But  he  thought  that  it  was  not  voluntary.  "It  did  not  rest  solely,  or  even 
principally,  upon  the  consideration  of  marriage."  It  was  an  agreement  for 
the  purchase  of  the  real  estate;  the  character  of  which  was  not  altered  by 
adding,  to  a  money  consideration,  that  of  marriage.  The  learned  judge  then 
followed  substantially  the  argument  of  Judge  Davis,  respecting  the  mode  of 
performance  by  the  wife,  the  effect  of  the  appropriation  of  her  earnings 
thereto,  and  her  rights  against  her  husband  after  performance.     Potter.  J., 


Art.  III.]         Antenuptial  Agreements.  701 

§  712.  But  other  cases  do  not  pcmiit  the  dividing  line 
between  the  two  considerations,  to  be  drawn  so  clearly  and 
and  satisfactorily.  Such  was  Crane  v.  Goiir/li,  4  Mary- 
land, 1316,  A.  1).  1853 ;  wlicrein  tlic^  Court  of  Appeals 
reversed  the  Chancellor's  decision,  reported  in  3  Maryland 
Chancery  Decisions,  119.  This  was  a  bill  lih'd  by  tlie 
administrator  of  Mary  Crane  against  the  executors  of 
George  Crane,  setting  forth  that  the  plaintiff's  intestate 
and. the  defendants'  testator  intermarried  ;  that  the  hus- 
band survived  the  wife  ;  that  at  the  time  of  the  marriage, 
Mrs.  Crane  was  the  owner  and  possessor  of  certain  notes 
and  bonds  ;  that  her  husband  did  not  during  his  life  time 
reduce  them  to  possession  ;  that  they  were  payable  to  Mis. 
Crane  by  her  antenuptial  name,  and  had  never  been  in 
dorsed  or  assigned  by  her ;  and  that  they  were  in  the  pos- 
session of  the  defendants,  {n)  The  plaintiff  thereupon 
pmyed  a  decree,  that  they  be  delivered  up  to  him  for  dis- 
tribution, etc.  The  defendants  interposed  as  a  defence,  an 
antenuptial  contract  between  Mrs.  Crane  and  her  hus- 
band ;  whereby,  in  consideration  of  the  marriage,  then 
about  to  take  place  between  them,  she  gave  him  the  notes 
and  bonds,  to  become  his  property  when  the  marriage 
should  take  place.  The  evidence  tended  to  prove  a  de- 
livery of  the  bonds  to  Col.  Crane,  and  an  agreement  by 
him  to  allow  to  his  intended  wife  the  interest  thereon,  as 
pin  money ;  and  the  appellate  court  thought  that  tlie  de- 
livery, as  well  as  the  agreement,  was  antenuptial.  But 
there  was  no  proof  of  any  postnuptial  performance  of  the 


concurred,  upon  both  points,  in  an  opinion  of  considerable  length.  He  also 
said  that  it  was  not  necessary  to  resort  to  the  married  woman's  act,  in  order 
to  sustain  the  contract  after  marriage,  as  equity  would  have  enforced  it  if  that 
statute  was  not  in  existence,  Catharine  having  not  only  fully  performed  it, 
but  also  taken  possession  of  the  property  under  it.  It  was  therefore  equita- 
bly her  property,  for  several  years  before  she  procured  the  legal  title ;  and 
equity  would  make  the  conveyance  relate  back  to  the  time  when  it  should 
have  been  given. 

{n)  By  a  Maryland  statute,  if  a  husband  fails  to  reduce  to  possession 
his  wife's  choses  in  action,  during  their  joint  lives,  or  after  her  death,  (if  he 
shall  survive  her,)  they  devolve  upon  her  representatives  at  his  death. 


702  Antenuptial  Ageeements.         [Ch.  xix. 

husband's  agreement  to  allow  liis  wife  the  interest.  The 
Chancellor  granted  a  decree ;  but  the  Court  of  Appeals 
reversed  it  and  dismissed  the  bill.  The  latter  decision 
was  very  distinctly  i)ut  upon  the  ground  that  the  contract 
was  executed  by  Mrs.  Crane,  before  the  marriage,  by 
placing  the  bonds  in  the  hands  of  her  future  husband. 
This,  the  court  thought,  would  have  entitled  her  to  main- 
tain a  bill  against  her  husband  for  the  payment  of  the 
interest ;  and  a  fortiori,  would  entitle  the  defendants  to 
sustain  their  possession  of  the  subject  matter  of  the  con- 
tract, after  it  had  been  executed,  (o) 

§  713.  In  this  case  it  seems  to  be  impossible  to  separate 
the  two  considerations  ;  but  the  decision  may  probably 

(o)  The  following  extract  from  the  opinion  of  Le  Grand,  C.  J.,  states  the 
substance  of  the  decision,  as  far  as  it  involved  the  question  now  under  ex- 
amination: '"The  declarations  of  Mrs.  Crane,  prior  to  her  marriage,  went  to 
the  extent  of  showing  thai  she  had  given  up  her  notes  and  bonds  to  Col. 
Crane ;  and  those  made  to  Dr.  Jones,  shortly  after  the  marriage,  in  the 
presence  of  her  husband,  amount  to  an  acknowledgment  of  its  fulfilment. 
Now  although  marriage  is  not  per  se  a  part  performance,  sufficient  to  take  a 
case  out  of  the  statute,  it  is  nevertheless  a  sufficient  consideration  for  the 
contract,  and  one  which  courts  regard  with  especial  favor,  as  of  most  meri- 
torious character.  The  declarations  of  Mrs.  Crane,  prior  to  the  marriage, 
indicate  with  sufficient  clearness  its  terms ;  and  those  immediately  after  its 
solemnization,  are,  in  our  judgment,  equivalent  to  an  acknowledgment  of  its 
execution  on  her  part;  and  w;e  are  therefore  warranted  in  the  conclusion, 
that  the  possession  of  Col.  Crane  was  obtained  under  the  contract,  and  not 
in  virtue  of  his  rights  as  husband.  If  the  bonds,  etc.,  were  in  possession  of 
Col.  Crane  jure  mariti,  she  need  not  have  said  any  thing  on  the  subject;  the 
law  passed  the  title  and  right  of  possession.  But  in  these  conversations,  she 
speaks  of  her  having  given  the  bonds,  etc.,  and  must  be  considered  as  refer- 
ring to  what  was  done  under  the  agreement,  and  it  is  evident  she  was  so 
understood  by  those  to  whom  she  addressed  herself.  Had  she  proceeded 
against  Col.  Crane,  and  had  he  acknowledge  lii^  received  the  securities 
under  the  contract  now  relied  upon  by  the  defendants,  a  court  of  equity  would 
have  decreed  in  favor  of  the  wife.  (Jn  the  whole  we  think  the  evidence 
sufficient  to  show  such  an  execution  of  the  contract,  as  to  withdraw  the 
case  from  the  operation  of  the  statute  of  frauds."  The  decision  in  this  case 
was  also  partly  put  upon  the  ground,  that  the  statute  did  not  apply  to  a  de- 
fe7ice,  founded  upon  a  parol  agreement,  which  could  not  have  been  enforced 
by  action. 


Art.  III.]         Antenuptial  Agreements.  703 

be  upheld,  (apart  from  the  ground  tliat  the  husband's 
executors  were  acting  merely  on  the  defensive,)  because 
there  was  a  distinct  act  of  performance  of  the  agreement, 
in  addition  to  the  marriage  ;  the  notes  and  bonds  having 
been  delivered  over  by  the  intended  wife.  But  the  case 
next  to  be  cited  appears  to  be  open  to  considerable  criti- 
cism, with  respect  to  the  effect  given  by  the  court  to  the 
act  of  performance ;  as  well  as  the  att^'uipt  to  distinguish 
between  the  marriage  consideration,  and  that  which  was 
resorted  to  to  uphold  the  transaction. 

§  714.  Tills  was  Riley  v.  Riley ^  26  Connecticut,  154, 
A.  D.  1856,  where  an  appeal  was  taken  from  the  decision 
of  the  commissioners  upon  the  estate  of  a  deceased  person, 
allowing  a  claim  against  the  estate  ;  and  after  a  trial  in  the 
appellate  court,  the  questions  of  law  were  reserved  for  the 
opinion  of  the  Supreme  Court  of  Errors.  The  claimant 
was  the  widow  of  the  deceased  ;  and  the  testimony  showed 
that,  about  seven  years  before  the  marriage,  she  loaned  to 
the  deceased  three  hundred  and  twenty  dollars,  taking 
therefor  his  notes  payable  upon  demand,  no  marriage  being 
then  contemplated  between  them  ;  but  shortly  before  their 
marriage,  and  in  contemplation  thereof,  she  "  spoke  to  the 
deceased  about  the  payment  of  the  notes :  he  replied  that 
it  would  be  inconvenient  for  him  to  pay  them  then  ;  that 
they  would  be  good  against  his  estate.  She  told  him  that 
she  did  not  want  to  be  left  in  the  hands  of  his  relatives, 
and  he  replied  that  she  should  not  be."  It  was  further 
proved  that  he  told  her,  both  before  and  after  the  marriage, 
"to  keep  the  notes,  and  they  would  be  good  against  his 
estate ;"  that  she  kept  them  during  the  coverture ;  and 
that  he  repeatedly  said  to  her  relatives  that  he  owed  her 
the  money,  and  if  he  did  not  pay  the  notes  in  his  life 
time,  they  would  be  paid  out  of  his  estate.  The  notes 
were  read  in  evidence,  but  the  remainder  of  the  evi- 
dence was  oral,  and  the  administrator  objected  to  its 
reception.  After  argument,  the  Supreme  Court  deter- 
mined that  the  oral  evidence  was  admissible,  and  the 


704  Antenuptial  Agreements.         [Cli.  xix. 

court  below  was  accordingly  advised  to  render  Judgment 
for  the  appellee.  (^:>) 

(p)  The  opinion  was  delivered  by  Ellsworth,  J.,  who  first  stated  that  if 
the  widow's  claim  could  be  upheld,  upon  either  legal  or  equitable  principles, 
the  appeal  could  not  be  sustained  under  the  statute  regulating  the  proceed- 
ings;  that  the  parties,  being  aware  that  the  notes  would  be  extinguished  by 
the  marriage,  undertook  to  guard  against  that  result  by  the  promise  of  the 
deceased,  that  if  the  claimant  would  forbear  to  insist  up^n  payment  before 
marriage,  the  notes  should  not  be  extinguished;  but  should  remain  good  and 
collectible  out  of  his  estate,  and  survive  to  the  petitioner  like  any  other 
of  her  choses  in  action  which  he  should  forbear  to  collect  during  the  cover- 
ture; and  that  they  should  continue  to  be  her  separate  estate.  This  interpre- 
tation of  the  language,  said  the  learned  judge,  is  not  free  from  all  question ; 
but  it  appears  to  be  only  just  and  reasonable,  when  it  is  considered  that  the 
parties  intended  that  the  notes  should  remain  in  force  after  the  marriage, 
which  could  be  done  only  by  a  new  promise,  founded  upon  foibearance.  It 
appears,  he  continued,  that  Riley  undertook  that  these  notes  should  not  fall  into 
his  estate,  but  should  remain  and  survive  to  the  petitioner,  like  any  other  choses 
in  action  which  he  should  forbear  to  collect  during  the  coverture;  and  that 
they  should  continue  to  be  her  separate  estate.  If  this  is  the  true  construction, 
it  could  be  enforced  at  law,  for  it  was  a  promise  to  be  performed  after  the  cov- 
erture had  ceased.  The  learned  judge  then  proceeded:  "As  to  the  objection 
derived  from  the  statute  of  frauds  and  perjuries,  we  think  there  is  no  ground 
for  it.  The  antenuptial  promise  was  made  in  consideration  of  forbearance, 
and  not  in  consideration  of  marriage,  though  it  was  made  in  contemplation 
of  marriage;  which  is  not  inconsistent  with  the  claim  of  the  appellant's 
counsel,  that,  a  promise  in  consideration  of  marriage  must  be  in  writing. 
Marriage  was  not  the  meritorious  cause  of  Riley's  promise ;  the  marriage 
obligation  was  already  perfect;  and  the  promise  in  question  was  made  upon 
the  assumption  that  it  was  so,  and  for  the  exact  purpose  of  saving  the  notes 
from  the  effect  of  the  marriage,  when  the  marriage  contract  should  be  exe- 
cuted. No  advancement  or  benefit  was  to  accrue  to  either  party  in  the  event 
of  the  marriage,  any  more  than  if  it  did  not  take  place ;  and  hence  it  is  not 
possible  to  consider  marriage  as  the  consideration  of  the  promise.  It  was 
the  debt ;  the  forbearance  of  it ;  and  this  forbearance  having  been  extended 
upon  the  request  of  Riley,  and  continued  until  his  death,  there  is  no  reason 
why  his  estate  should  not  be  liable."  The  learned  judge  said  that  this  was 
all  which  it  was  necessary  to  decide,  in  order  to  dispose  of' the  case;  but  he 
proceeded  to  consider  some  other  points.  He  thought  that  the  claim  might 
also  be  sustained  on  the  ground,  that  in  equity  the  transaction  was  in  efiect 
the  same,  as  if  the  husband  had  promised  that  the  note  of  a  stranger,  owned 
by  her  at  the  time  of  the  marriage,  should  be  kept  as  her  separate  property, 
and  survive  to  her ;  and  in  that  aspect  of  it,  these  notes  were  her  separate 
estate,  which  he  held  as  her  trustee ;  or  the  transaction  might  be  regarded 
as  a  postnuptial  gift,  to  which  no  one  but  creditors  could  object. 


Art.  III.]         Antenuptial  Agkeements.  705 

§  715.  The  court  appears  to  have  assumed,  in  this  case, 
that  because  Riley  had  already  promised  to  marry  the  peti- 
tioner, the  agreement  could  not  have  been  made  in  consider- 
ation of  marriage  ;  which  is  equivalent  to  saying  that  an 
antenuptial  contract  is  one  made  in  consideration  of  a  prom- 
ise of  marriage  ;  a  projDosition  of  which  we  have  endeavored 
to  show  the  fallacy,  in  the  foregoing  pages.  And  upon  the 
point  that  there  was  any  thing  distinct  from  tlie  marriage, 
either  as  a  consideration  or  as  an  act  of  performance,  the 
case  is  unsatisfactory,  and,  we  think,  of  dangerous  ten- 
dency. It  is  quite  clear  that  tli(?  ugieement  for  forbearance 
was,  in  legal  effect,  only  a  promise,  on  the  part  of  the 
woman,  to  leave  her  antematrimonial  rights  in  abeyance, 
awaiting  the  accomplishment  of  the  marriage  ;  and  that  she 
never  parted  with  her  right  to  enforce  the  notes,  as  a  con 
sideration  for  the  promise  on  the  part  of  the  husband ; 
theu-  extinguishment  having  resulted,  not  fi-om  the  forbear- 
ance, but  from  the  subsequent  marriage.  There  was,  there- 
fore, no  legal  consideration  for  her  promise  to  forbear,  or 
for  her  actual  forbearance  ;  and  nothing  beyond  the  mar- 
riage furnished  by  either  party,  except  a  voluntary  for- 
bearance on  one  side,  and  a  void  promise  on  the  other. 
Upon  the  hypothesis,  which  the  court  adopted,  it  would 
seem  clear,  that  if  the  match  had  been  broken  off  by  the 
petitioner,  she  could  not  have  collected  the  notes ;  for  if 
the  agreement  bound  her,  a  plea  of  the  agreement  and 
semper  paratus  would  have  afforded  a  perfect  defence  to 
an  action  in  her  favor. 

§  716.  Again,  in  order  to  entitle  a  party  to  a  decree  for 
the  performa^ice  of  an  agreem(3nt  within  the  statute,  he 
must  have  done  some  specific  act,  in  pursuance  of  the 
contract.  Mere  acquiescence  in  the  previously  existing 
condition  of  the  subject  matter  of  the  alleged  agreement 
will  not  suffice  ;  because  it  does  not  necessarily  imply 
that  any  new  agreement  had  been  made.  (5')    This  princi- 

(5)  Thus  where  a  tenant  alleges  that  he  made  a  verbal  contract  with  his 
landlord  for  a  new  term,  or  for  the  purchase  of  the  property,  his  merely 
remaining  in  possession  is  not  an  act  of  performance  on  his  part;  nor  is  the 
89 


706  Antenuptial  Agreements.         [Ch.  xix. 

pie  was  completely  disregarded  by  the  ruling  adopted 
in  Riley  v.  Riley ^  and  its  soundness  is  manifested  by  the 
consequences  to  which  that  ruling  will  lead.  For  if  a 
verbal  request  on  one  side,  and  a  verbal  assent  on  the 
other,  followed  by  no  visible  act,  is  to  set  the  statute  aside, 
it  is  quite  clear  that  but  little  will  be  left  of  the  provision 
that  agreements  in  consideration  of  marriage  must  be  in 
writing.  Thus  a  woman's  forbearance,  at  the  request  of 
her  intended  husband,  to  put  her  property  in  the  hands  of 
trustees,  would  sustain  his  verbal  promise  that  she  should 
enjoy  and  dispose  of  it  after  marriage,  as  a  feme  sole.  The 
list  of  such  cases  might  be  almost  indelinitely  extended,  (r) 

§  717.  The  case  of  FincTi  v.  Fincli,  10  Ohio,  New  Series, 
501,  A.  D.  1860,  is  a  direct  ruling  against  the  doctrine  of 
Riley  v.  Riley.  There,  the  widow  of  Ira  Finch,  deceased, 
filed  a  petition  for  admeasurement  of  dower  against  his 
devisees ;  to  which  they  interposed  an  answer,  setting 
forth  three  defences,  the  second  being  a  verbal  agree- 
ment between  the  petitioner  and  the  deceased,  in  con- 
templation of  their  marriage,  to  the  effect  that  she  should 
retain  and  absolutely  control  the  property  which  she 
owned,  consisting  of  personal  property  and  a  dower 
estate  in  the  lands  of  a  former  husband,  and  that  upon 
her  decease  her  property  should  all  go  to  her  children  by 
her  former  husband ;  and  on  the  other  hand,  that  if  she 
survived  him,  she  would  relinquish  all  title  and  interest 
to  his  estate,  real  and  personal,  to  his  legatees  and  de- 
visees, and  would  make  no  claim  thereon.  It  was  further 
alleged  that  the  agreement  had  been  executed,  by  the  reten- 
tion, enjoyment,  and  disposition  of  her  property  by  the 
petitioner,  during  the  marriage.  A  motion  having  been 
made  in  the  court  below,  to  strike  this  answer  from  the 

landlord's  acquioscence  in  his  continued  possession  an  act  of  performance  on 
the  part  of  the  latter.  Sugden  on  Vendors,  14th  edition,  chapter  iv,  sec.  vii, 
p.  152;  1  Story's  Equity  Jurisprudence,  8th  edition,  §§  762,  763;  Browne 
on  Frauds,  §  477;  and  numerous  cases  cited  by  each  author. 

(r)  Several  of  the  cases  cited  in  the  next  chapter  are  directly  in  point 
against  this  ruling,  particularly  Caton  v.  Caton,  post  §§  756-758. 


Art.  III.]         Antenuptial  Agreements.  707 

files,  on  the  ground  tlint  the  agreements  therein  set  forth 
were  within  the  statute;  of  frauds,  the  case  was  reserved 
for  the  decision  of  the  Supreme  Court,  where  it  was  deter- 
mined that  the  answer  was  insufficient  in  all  its  branches. 
Upon  tlie  question  wliethor  the  second  defence  was  suffi- 
cient, Brinkerhoff,  C.  J.,  said:  "The  antenuptial  agree- 
ment, set  forth  in  the  second  defence  alleged  in  the  answer, 
was  clearly  an  agreement  '  upon  consideration  of  mar- 
riage.' It  is  true,  marriage  was  not  the  sole  consideration 
for  the  agreement,  on  the  part  of  the  intended  wife,  that 
she  would  not  demand  dower,  in  case  she  survived  her 
intended  husband ;  his  agreement  not  to  exercise  the 
rights,  in  respect  to  her  property,  which  the  marriage 
would  confer,  constituted  an  additional  consideration  for 
the  agreement  on  her  part ;  but  tlie  agreement  was  entire  ; 
the  intended  marriage  entered  into  and  formed  part  of  the 
entire  consideration  on  both  sides  ;  and  without  it  the 
agreement  never  would  have  been  made."(5) 

§  718.  It  is  difficult,  and  perhaps  impossible,  to  lay 
down  any  rule,  which  will  furnish  a  correct  test  for  every 
case  of  this  description.  But  it  would  seem  clear  upon 
principle,  that  when  a  party  insists  upon  the  right  to 
take  a  case  out  of  the  statute,  on  thfe  ground  that  there 
was  a  distinct  consideration  for  the  verbal  promise,  in 
addition  to  the  marriage,  the  additional  consideration 
must  have  been  of  such  a  character,  that  it  gave  the  other 
party  to  the  contract,  or  some  person  within  the  scope  of 
the  consideration,  some  legally  enforceable  right,  which 
he  would  not  otherwise  have  enjoyed.  If  it  answers  this 
description,  the  principle  is  the  same,  whether  the  right 
was  to  be  enjoyed  before  the  marriage,  during  its  exist- 
ence, or  only  after  its  termination  ;  or  even,  in  the  latter 
event,  only  in  case  the  person  for  whose  benefit  it  was 
created,  should  survive  till  the  marriage  was  terminated. (^) 

(s)  The  question  whether  there  had  been  such  a  performance  of  tlie  ante- 
nuptial agreement,  as  would  take  it  out  of  the  statute  also  arose  in  this  case; 
which  is  cited  ajjain,  in  that  connection  in  the  following  chapter. 

(/)  See  Houghton  v.  Houghton,  14  Indiana,  505,  and  another  citation  of 
Finch  V.  Finch,  post  ^§  737,  738. 


CHAPTER  TWENTIETH. 

PECULIAE  EFFECT,  UPON"  THE  AGREEMENTS  WHICH  FALL 
WITHIN  THIS  PROVISIOlSr,  OF  THE  EQUITABLE  DOCTRINES, 
WHEREBY  RELIEF  IS  GRANTED  TO  A  PARTY,  WHO  HAS 
PERFORMED  HIS  PART  OF  A  VERBAL  AGREEMENT. 


§  719.  In  a  subsequent  part  of  this  work,  we  shall  bestow 
considerable  attention  upon  the  effect,  at  law  and  in  equity, 
of  partial  or  complete  performance  of  verbal  agreements, 
falling  within  the  terms  of  the  statute  of  frauds.  In  gen- 
eral, the  relief  granted  by  the  courts,  in  such  cases,  is 
regulated  by  the  same  principles,  under  whatever  clause 
the  question  is  presented  ;  but  in  cases  arising  upon  agree- 
ments made  in  consideration  of  marriage,  the  application 
of  some  of  these  principles  becomes  exceptional,  and  leads 
to  results,  directly  contrary  to  those  which  are  attained,  in 
cases  arising  under  the  other  clauses.  For  while  the 
statute  describes  the  other  verbal  promises  which  it 
embraces,  according  to  their  form  or  subject  matter ; 
whereby  room  is  left  for  equity  to  lay  hold  of  the  perform- 
ance by  the  party  seeking  relief,  upon  the  faith  of  the 
promise,  as  a  circumstance  taking  the  case  without  the 
supposed  intent  of  the  legislature  ;  this  clause  is  so  framed 
that  the  statute  is  set  in  motion,  by  the  very  fact,  upon 
which  the  equity  jurisdiction  rests.  And  unless  the  stat- 
ute applies  to  every  such  case,  it  applies  to  none  ;  for, 
with  respect  to  questions  arising  upon  the  sufficiency  of 
the  performance,  all  the  cases  are  equally  meritorious. 
The  consideration  is  of  a  character  so  peculiar,  (being,  as 
we  have  already  seen,  the  highest  known  to  the  law,  and 
from  its  nature  rendering  a  restoration  to  the  status  quo 
impossible),  that  it  always  satisfies  the  conditions  affixed 
to  the  equitable  right  to  relief.  Hence  arise  sundry  per- 
plexing questions,  peculiar  to  this  species  of  contract. 


Art.  I.]  Antenuptial  Agreements.  709 


ARTICLE  I. 

Whether  marriage  itself  is  snoh  a  performance,  as  to  call  into  operation  the  equitable  mle. 

§  720.  There  is  some  authority  for  the  proposition,  that 
when  a  marriage  has  been  contracted  upon  the  faith  of  a 
verbal  promise,  equity  will  not  suffer  the  statute  to  be 
interposed  to  defeat  an  action  by  the  promisee  for  specific 
performance,  (a)  But,  as  we  have  already  remarked,  the 
language  of  the  statute  is  such,  that  this  proposition  is 
equivalent  to  denying  that  courts  of  equity  are  subject  to 
its  provisions.  And  the  scattered  dicta  to  be  found  in  the 
books,  in  support  of  such  a  doctrine,  cannot  prevail  in 
opposition  to  the  express  language  of  the  act,  and  the 
steady  current  of  decisions,  which  has  long  run  in  the  con- 
trary du-ection. 

§  721.  The  ruling  of  Lord  Chancellor  Macclesfield,  in 
the  earliest  case  of  all,  has  never  been  successfully  ques- 
tioned upon  principle,  or  overruled  by  authority.     We 


(a)  Mr.  Justice  Story,in  Jenkins  v.  Eldridge,  3  Story,  181,  speaking  of  the 
principle  tliat  equity  would^not  relieve  in  such  cases,  where  there  was  no 
actual  fraud,  said :  '•  I  douht  the  whole  foundation  of  the  doctrine,  as  not 
distinguishable  from  other  cases,  which  courts  of  equity  are  accustomed  to 
extract  from  the  grasp  of  the  statute  of  frauds."  But  the  remark  was  entirely 
obiter.  There  is  no  expression  of  such  an  opinion,  in  the  earlier  editions 
of  his  Equity  Jurisprudence,  but  we  find  in  the  eighth  edition  (§  987,  a),  a 
comment,  added  by  Judge  Redfiold,  upon  Warden  v.  Jones,  cited  post  §731, 
substantially  to  the  same  effect.  And  a  similar  opinion  was  expressed,  but 
also  obiter,  by  Chancellor  Dargan,  in  Hatcher  v.  Robertson,  4  Strobhart's 
Equity  (South  Carolina),  182,  A.  D.  1850,  and  by  Chancellor  Wardlaw,  in 
Hair  v.  Hair,  10  Richardson's  Equity  (South  Carolina),  1G5,  A.  D.  1858.  To 
the  same  effect  were  the  remarks  of  Benning,  J.,  in  Durham  v.  Taylor,  29 
Georgia,  166,  A.  D.  1859;  where  he  argued  that,  if  a  marriage  is  necessary, 
in  order  to  bring  a  case  within  the  statute,  antenuptial  agreements  must  be 
excluded  from  it;  because  the  consideration  of  such  an  agreement  is  a  prom- 
ise to  marry;  that  the  marriage  is  the  performance  of  the  promise,  which 
formed  the  consideration,  and  not  the  consideration  itself;  and  that  such 
performance,  upon  every  principle  of  equity,  entitles  the  other  party  to 
relief,  in  consequence  of  the  impossibility  of  restoring  him  to  the  status  quo. 
Tiiis  doctrine  is  commented  upon,  ante,  §§  687-689. 


710  Antenuptial  Agreements.  [Cli.  xx 

refer  to  Lady  Montacute  v.  Maxwell.  1  Peere  Williams, 
618,  decided  in  the  year  1720.  There  the  plaintiff  brought  ■ 
a  bill  against  her  husband,  setting  forth  that  before  the 
marriage,  he  promised  that  she  should  enjoy  all  her  estate 
to  her  separate  use ;  that  he  had  agreed  to  execute  writ 
ings  accordingly,  and  had  instructed  counsel  to  draw 
them  ;  but  when  they  were  about  to  be  married,  the  writ- 
ings not  being  perfected,  he  "  desired  this  might  not  delay 
the  match,  in  regard  to  his  friends  being  there,  it  might 
shame  him  ;  but  engaged  that  upon  his  honor  she  should 
have  the  same  advantage  of  the  agreement,  as  if  it  were 
in  WTiting,  drawn  in  form  by  counsel,  and  executed;" 
whereupon  the  marriage  took  place  ;  and  afterwards, 
being  reminded  of  his  promise,  he  wrote  a  letter  to  her, 
expressing  that  he  was  always  willing  that  she  should 
enjoy  her  own  fortune  as  if  she  was  sole,  and  that  it 
should  be  at  her  command.  To  this  the  defendant  pleaded 
the  statute,  and  averred  that  he  never  signed  any  promise 
or  agreement  before  marriage,  that  she  should  enjoy  her 
estate  separately. 

§  722.  After  argument  the  Lord  Chancellor  allowed 
the  plea.  He  said:  "In  cases  of  fraud,  equity  should 
relieve,  even  against  the  words  of  the  statute  ;  as  if  one 
agreement  in  writing  should  be  p'roposed  and  drawn,  and 
another  fraudulently  and  secretly  brought  in,  and  executed 
in  lieu  of  the  former  ;  in  this  or  such  like  cases  of  fraud, 
equity  would  relieve  ;  but  where  there  is  no  fraud,  only 
relying  upon  the  honor,  word,  or  promise  of  the  defend- 
ant, the  statute  making  these  promises  void,  equity  will  not 
interfere ;  nor  were  the  instructions  given  to  counsel  for 
preparing  the  writings  material,  since  after  they  were 
drawn  and  engrossed,  the  parties  might  refuse  to  execute 
them ;  and  as  to  the  letter  it  consists  only  of  general  ex- 
pressions, as  'that  the  estate  should  be  at  the  plaintiff's 
command,  or  at  her  service.'  Indeed, "  continued  his  Lord- 
ship, "had  it  recited  or  mentioned  the  former  agreement, 
and  promised  the  performance  thereof,  it  had  been  ma- 
terial :  but  as  this  case  is  circumstanced,  allow  the  plea ; 


Art.  I.]  Antenuptial  Agreements.  711 

also  tliis  plea  was  in  bar  of  a  discovery  as  to  all  matters, 
wliicli,  if  discovered  and  admitted,  might  be  barred  by 
the  statute,  so  far  may  the  statute  be  pleaded  in  l)ar  of 
such  discovery."  (&) 

(b)  The  plaintiff  afterwards  amended  her  bill,  further  charging  that  the 
defendant,  in  order  to  induce  her  to  marry  him,  without  a  settlement,  and  to 
secure  the  performance  of  his  promise  to  execute  it  afterwards,  promised 
to  take  the  sacrament  on  it,  and  did  take  the  sacrament  accordingly  ;  and 
that  he  wrote  a  letter  after  tlie  marriage,  wherein  he  promised  to  make  such 
settlement,  and  that  he  was  ready  to  sign  the  writings  according  to  her  de- 
sire. The  defendant  answered,  that  he  tool^  the  sacrament,  only  in  compli- 
ance with  the  custom  of  his  (the  Roman)  church,  to  take  the  sacrament  on 
marriage  ;  and  as  to  the  letter,  he  did  not  remember  the  particulars ;  but  it 
he  had  written  any  thing  concerning  his  readiness  to  sign  any  writings,  it 
related  to  some  proposals  he  had  made  of  settHng  1,500/.  on  her,  which  he 
soon  afterwards  did.  He  then  again  pleaded  the  statute.  The  Lord  Chancel- 
lor thought  the  case  very  much  altered  by  the  new  circumstances ;  that  at  first 
it  stood  purely  upon  the  parol  promise,  upon  which  there  was  no  color  to 
relieve  the  plaintiff;  but  that  such  a  parol  promise,  was  a  sufiBcient  consider- 
ation to  support  a  postnuptial  settlement,  or  to  establish  a  postnuptial 
promise  in  writing;  and  upon  a  consideration  of  the  facts,  he  thought 
that  there  was  great  evidence  of  a  promise  in  writing  after  marriage ; 
wherefore  the  plea  was  ordered  to  stand  for  an  answer.  1  Strange,  236. 
The  case  is  also  briefly  reported  in  1  Equity  Cases  Abridged,  19,  and 
Precedents  in  Chancery,  526;  but  it  is  impossible  to  determine  with  cer- 
tainty whether  either  report  relates  to  the  case  made  by  the  original,  or 
by  the  amended  bill.  In  the  former  it  is  intimated,  that  the  defendant  pri- 
vately countermanded  the  instructions  for  drawing  the  settlement,  and  that 
the  plaintiff  was  drawn  in  to  many  him,  "  by  persuasions  and  assurances  of 
such  settlement."  The  latter  represents  Lord  Macclesfield's  judgment  to 
have  been  :  "  Where  the  parties  come  to  an  agreement,  but  the  same  is  never 
reduced  into  writing,  nor  any  proposal  made  for  that  purpose,  so  that  they  rely 
wholly  upon  their  parol  agreement,  that  unless  this  be  executed  in  imrt,  neither 
party  can  compel  the  other  to  a  specific  performance,  for  that  the  statute 
of  frauds  is  directly  in  their  way ;  but  if  there  were  any  agreement  for  re- 
ducing the  same  into  writing,  and  that  is  prevented  by  the  fraud  and  prac- 
tice of  the  other  party,  that  this  court  will  in  such  case  give  relief;  as  where 
instructions  are  given,  and  preparations  made  for  the  drawing  of  a  marriage 
settlement,  and  before  the  completing  of  it,  the  woman  is  drawn  by  the 
assurances  and  promises  of  the  man  to  perform  it,  and  after  to  marry  him." 
Mr.  Roberts,  it  appears  to  us,  strangely  misquotes  and  misunderstands  the 
last  sentence  of  this  remark,  Roberta  on  Frauds,  198;  followed  in  Erowne 
on  Frauds,  §  444. 


712  Antenuptial  Agreements.  [Cli.  xx. 

§  723.  The  doctrine  that  where  the  aggrieved  party  has 
relied  upon  the  promise  only,  the  court  can  afford  no 
relief,  has  been  re-asserted  and  sanctioned  by  numerous 
subsequent  decisions  in  England  and  in  the  United  States. 
It  rests,  by  common  consent,  upon  the  express  language  of 
the  statute,  and  the  impossibility  of  otherwise  giving  any 
practical  effect  to  the  clause  in  question.  As  Lord  Cotten- 
ham  remarked  in  Lassence  v.  Tierney^  1  Macnaghten  and 
Gordon,  671,  572:  "A  parol  contract,  followed  only  by 
marriage,  is  not  to  be  carried  into  effect,  marriage  being 
no  part  performance  of  the  contract.  If  it  were,  there 
would  be  an  end  of  the  statute,  which  says  that  a  contract 
in  consideration  of  marriage  shall  not  be  binding  unless  it 
be  in  writing ;  but  if  marriage  be  part  performance,  every 
parol  contract  followed  by  marriage  would  be  binding,  "(c) 

§  724.  And  although  soon  after  the  passage  of  the  stat- 
ute it  was  suggested  by  Lord  North,  in  two  cases  arising 
under  another  clause  of  this  section,  that  a  distinction  was 
admissible,  between  a  case  where  the  party  relied  merely 
upon  a  promise  to  do  a  certain  act,  and  one  where  it  was 
agreed  that  a  writing  should  be  executed,  binding  him  to 
do  the  act,((^)  this  idea  is  now  abandoned  ;  and  it  is  con- 
ceded that  in  the  absence  of  any  trick  or  fraud,  no  such 
distinction  can  be  sustained,  under  whatever  part  of  the 
statute  the  question  arises,  (e)    Where  it  was  agreed  that 


(c)  See  also  Atherley  on  Marriage  Settlements,  90;  Reeve's  Domestic 
Relations,  3d  edition,  215;  Per  Sir  John  Romilly  in  Warden  v.  Jones,  23 
Beavan,  492 ;  Per  Lord  Thurlow,  in  Redding  v.  Wilkeg,  3  Brown's  Chan- 
cery, 400;  Per  Brinkerhoff,  C.  J.,  in  Finch  v.  Finch,  10  Ohio,  New  Series, 
506;  Per  Lord  Thurlow  in  Dundas  v.  Dutens,  1  Vesey,  199. 

{d)  Hollis  V.  Whiteing,  1  Vernon,  151,  A.  D.  1682 ;  Leak  v.  Morrice,  2 
Cases  in  Chancery,  135,  in  the  same  year. 

(e)  Beames's  Pleas  in  Equity,  181, 182  ;  Per  Lord  Thurlow,  in  Whitchurch 
V.  Bevis,  2  Brown's  Chancery,  564,  565 ;  Warden  v.  Jones,  2  De  Gex  and 
Jones,  76,  cited  more  fully  post,  §  731;  Wood  v.  Midgley,  5  De  Gex,  Mac- 
naghten and  Gordon,  41 ;  Spurgeon  v.  Collier,  1  Eden,  55,  post,  §  730; 
Hackney  v.  Hackney,  8  Humphreys  (Tennessee),  452,  cited  in  the  next  sec- 
tion; Lassence  v.  Tierney,  1  Macnaghten  and  Gordon,  551,  post,  §  748. 


Ai't.  I.]  Antenuptial  Agreements.  71  ;s 

a  writing  should  be  executed,  but  its  execution  was  pre- 
vented by  an  accident ;  and  the  pai-ty,  knowing  that  it  had 
not  been  executed,  nevertlieless  married,  an  action  cannot 
be  sustained  to  enforce  the  parol  agreement.  (/)  As  for 
instance  where  a  parent  or  other  relative  promised  to  give 
a  portion  with  an  intend(^d  wife,  and  directed  that  the 
necessary  "WTitings  should  be  prepared ;  but  before  they 
were  executed,  he  died,  and  the  marriage  subsequently 
took  place.  In  such  a  case,  the  party  is  without  remedy, 
even  though  the  agreement  contemplated  a  settlement  by 
him,  which  he  executed  after  the  death  of  the  other  party, 
but  before  the  marriage,  {g) 

%  725.  There  is  an  American  case,  which  is  almost  a 
counterpart  of  that  which  came  before  Lord  Macclesfield ; 
we  refer  to  Hackney  v.  Hackney^  8  Humphreys  (Tennes- 
see), 452,  A.  D.  1847.  There  a  wife  filed  a  bill  against  her 
husband,  for  the  specific  performance  of  an  antenuptial 
promise  to  settle  upon  her  certain  slaves,  of  which  she 
was  the  owner  at  the  time  of  her  marriage  ;  charging  that 
he  had  no  intention  of  performing  the  agreement  when  he 
made  it,  and  intended  a  fraud  upon  her.  It  appeared  that 
the  complainant  had  urged  the  defendant,  before  the  mar- 
riage took  place,  to  execute  a  settlement  of  her  property 
upon  her ;  but  he  had  refused  to  do  so,  on  the  ground  "that 
such  a  course  was  in  violation  of  all  his  preconceived  opin- 
ions, concerning  the  anticipated  relation  of  husband  and 

(/)  Spiirgeon  v.  Collier,  1  Eden,  55,  post,  §  730 ;  Warden  v.  Jones,  2  De 
Gex  and  Jones,  76,  post,  §  731.  In  Wanchford  v.  Fotherly,  Freeman's 
Cliancery,  201,  A!  D.  1694,  it  is  said  that  Lord  Somcrs  cited  the  case  of 
"Masquill,  etc.,  where  writings  were  prepared  and  agreed,  but  being  blotted, 
were  ordered  to  be  writ  fair,  and  were  so ;  but  before  they  were  sealed  the 
party  died ;  and  this  court  charged  the  executor  with  the  portion  agreed  to 
be  paid."  But  this  is  probably  an  incorrect  statement  of  the  case  of  Cookes 
V.  Mascall,  post,  §  727. 

{g)  Bawdes  v.  Amhurst,  Precedents  in  Chancery,  402,  A.  D.  1715;  Lady 
Thynne  v.  Lord  Glengall,  2  House  of  Lords  Cases,  131 ;  S.  C,  12  Jurist,  805, 
A.  D.  1848.  But  the  case  might  be  different,  if  the  future  husband  had  exe- 
cuted the  se^,tlement  before  the  death  of  the  other  party.  Hammersley  v. 
De  Biel,  post,  §§  744-747. 
90 


714  Antenuptial  Agkeements.  [Oh.  xx. 

wife ;  tliat  it  was  calculated  to  impair  the  independence  of 
the  husband,  and  to  subject  them  both  to  the  strictures 
and  animadversions  of  others."  But  he  also  repeatedly- 
promised  her,  that  she  should  control  her  property,  un- 
affected by  his  marital  rights  ;  and  that  after  the  marriage 
was  consummated,  he  would  execute  such  a  settlement. 
The  Supreme  Court  affirmed  a  decree  of  the  chancellor, 
dismissing  the  bill.  Turley,  J.,  delivering  the  opinion, 
said  that  he  was  satisfied  that  the  defendant  never  had 
intention.to  fulfil  the  promise,  and  had  practiced  a  "gross 
and  inexcusable  fraud  "  upon  the  complainant ;  but  it  was 
not  a  fi-aud  which  took  the  case  out  of  the  statute.  He 
refused  to  make  any  settlement  before  marriage,  and  she 
had  relied  upon  Ms  promise  to  make  it  after  marriage.  She 
therefore  knew  that  there  was  no  valid  antenuptial  con- 
tract, and  though  the  court  would  gladly  relieve  her  from 
the  consequence  of  her  "ridiculous  and  imprudent  confi- 
dence," it  was  impossible  to  do  so  without  impairing  the 
statute. 

§  726.  The  distinction  suggested  in  Montacute  v.  Max- 
well, that  the  court  will  relieve,  notwithstanding  the 
statute,  whenever  there  has  been  any  actual  fraud,  had 
already  been  taken  in  several  previous  cases  ;  and  with 
respect  to  that  question,  there  is  nothing  peculiar  to  this 
class  of  agreements,  except  that  perhaps  the  courts  are 
inclined  to  extend  the  doctrine  somewhat  further,  where 
the  fraud  has  resulted  in  the  party' s  being  drawn  into  a 
marriage,  than  in  other  cases. 

§  727.  The  case  of  CooTces  v.  Mascall,  2  Yernon,  200, 
A.  D.  1690,  is  supposed  to  have  proceeded  on  this 
ground.  (A)  After  the  terms  of  a  treaty  of  marriage  be- 
tween Cookes  and  Mascall's  daughter,  had  been  agreed 
upon,  to  the  effect  that  Cookes' s  father  and  Mascall  would 

(/i)  Atherly  on  Marriage  Settlements,  87 ;  Peachey  on  Marriage  Settle- 
ments, 83 ;  Browne  on  the  Statute  of  Frauds,  §  443.  Mr.  Roberts  seems  to 
be  unable  to  account  for  the  decision.  Roberts  on  Frauds,  194.  The  case 
is  also  reported,  more  raeagerly,  in  1  Equity  Cases  Abridged,  22. 


Art.  I  ]  Antenuptial  Agreements.  71  o 

each  make  a  settlement  of  certain  property,  the  two 
fathers  and  one  Baker,  an  attorney,  had  a  meeting  in 
order  to  complete  the  agreement.  Baker,  liaving  dis- 
coursed with  the  two  fathers,  proceeded  to  di-aw  the 
agreement  for  the  settlement ;  but  before  it  was  ready, 
they  disagreed  ;  and  jVIascall  swore  tliat  he  refused  to 
proceed  any  further,  assigning  his  reasons  for  the  refusal. 
"But,"  the  report  adds,  "  Cookes  put  up  what  Baker  had 
wrote  into  liis  pocket,  and  so  they  parted,  and  had  no 
further  meeting  or  treaty ;  but  old  Cookes  swore,  that 
after  the  articles  were  drawn,  they  were  read  over  and 
agreed  to  ;  and  that  Mascall  promised  to  meet  at  another 
time  to  execute."  After  this,  young  Cookes  was  permit- 
ted to  go  to  Mascair  s  house,  and  two  months  afterwards 
married  the  daughter,  Mascall  being  privy  to  the  mar- 
riage, setting  them  forward  in  the  morning,  and  entertain- 
ing them  upon  their  return.  The  action  was  brought  by 
the  younger  Cookes  and  his  wife,  against  the  two  fathers  ; 
and,  the  report  says,  the  elder  Cookes  having  offered 
in  his  answer  to  perform  the  agreement  on  his  part,  the 
court  "thought  fit  to  decree"  that  Mascall  should  per- 
form, according  to  the  writing  drawn  by  Baker,  (i) 

§  728.  So  in  Mallett  v.  Halfpenny^  1  Equity  Cases 
Abridged,  20,  A.  D.  1699, (y)  the  defendant  had  given  to 

(i)  Bui  in  2  Vernon,  34,  there  is  a  report  of  the  hearing,  upon  a  bill  filed 
two  years  earlier,  which  was  apparently  brought  by  the  husband  alone 
against  his  father-in-law  only.  There  it  is  said,  that  the  plaintiff  relied  upon 
a  letter  written  to  him  by  the  defendant;  and  that  his  counsel  contended  that 
the  agreement  prefiared  by  Baker,  was  the  game  in  effect  as  the  letter,  but 
drawn  more  formally;  on  the  other  hand,  the  defendant's  counsel  insisted 
that  they  were  essentially  different,  and  that  the  evidence  showed  that  the 
parties  never  came  to  any  definite  agreement  upon  the  contents  of  the  letter. 
The  report  says,  that  the  "court  inclined  to  dismiss  the  bill;  but  at  the 
instance  of  the  plaintiff's  counsel,  gave  him  a  twelvemonth's  time  to  try  it 
at  law,  whether  there  was  an  agreement  so  fixt."  In  the  notes  to  the  second 
edition  of  Vernon,  it  is  said  that  these  are  two  reports  of  the  same  case  ;  but 
whether  this  is  true  or  not,  it  is  probable  that  tlie  letter  influenced  the  final 
decision  of  the  controversy. 

{j)  S.  C.  differently  reported,  2  Vernon,  373 ;  but  in  Bawdes  v.  Amhurst 
Precedents  in  Chancery,  402,  Lord  Cowper  stated  the  case,  as  in  the  text, 
from  his  own  memory. 


716  Antenuptial  Agheements.  [Cli.  xx. 

the  plaintiff  a  writing,  promising  a  portion  with  his 
daughter,  and  afterwards,  designing  to  elude  the  force 
thereof,  he  "ordered  his  daughter  to  put  on  a  good  humor 
and  get  the  plaintiff  to  deliver  up  that  writing,  and  then 
to  marry  him,"  which  she  did;  and  "the  plaintiff  was 
relieved  by  the  Master  of  the  Rolls  on  the  point  of  fraud, 
which  was  proved. "(/J:) 


ARTICLE  II. 

Whether  a  verbal  antenuptial  promise  will  support  a  postnuptial  settlement  in  accordance 
therewith,  or  a  postnuptial  written  agreement  to  make  such  a  settlement! 

§  729.  It  seems  to  be  now  generally  conceded,  in  England 
and  in  the  United  States,  as  a  consequence  of  the  rule  that 
marriage  alone  is  not  such,  a  performance,  as  will  entitle 
the  complainant  to  a  specific  execution  of  a  verbal  agree- 
ment, made  in  consideration  thereof,  that  such  an  agree- 
ment will  not  suffice  to  protect  a  postnuptial  conveyance 
of  property  against  the  attacks  of  creditors  ;  and  a  fortiori 
that  a  recital  in  the  conveyance  of  the  existence  of  such  a 
verbal  agreement  is  immaterial.  There  are  some  authori- 
ties in  the  English  reports  to  the  contrary ;  but  they  must 
be  regarded  as  having  been  overruled  in  that  country  by 
more  recent  well  considered  cases,  (a)     In  Batter shee  v 

{k)  These  cases  are  referred  to,  and  the  general  principle  Avhich  they 
establish  is  recognized,  in  1  Story's  Equity  Jurisprudence,  8th  ed.,  §  768; 
Atherly  on  Marriage  Settlements,  86-88;  Peachey  on  Marriage  Settlements, 
81,  82.  Also  in  Browne  on  the  Statute  of  Frauds,  §§  441-445  a,  where 
several  analogous  ..ases  are  cited,  arising  upon  agreements  for  the  purchase 
of  land. 

(a)  Lord  Chancellor  Macclesfield,  according  to  the  report  in  1  Strange,  237, 
of  Montacute  v.  Maxwell,  said  that  it  had  been  "  frequently  determined"  that 
an  antenuptial  verbal  promise  would  support  a  settlement  after  marriage. 
According  to  the  report  in  2  Cox's  Chancery,  235,  of-  Dundas  v.  Dutens. 
decided  in  1790,  Lord  Thurlow's  judgment  proceeded  upon  that  very  ground. 
He  is  represented  as  having  said  that  "he  could  not  conceive  that  a  settle- 
ment made  after  marriage,  in  pursuance  of  an  agreement  before  marriage, 
though  only  parol,  could  ever  be  reckoned  a  fraudulent  settlement,"  and 
that  "  he  was  therefore  clearly  of  opinion  that  the  settlement"  (in  the  case  at 
bar)  "  was  in  itself  valid."    Accordingly  he  dismissed  with  costs  a  bill  ir  favor 


Art.  II.]  A"NTENUPTIAL  AGREEMENTS.  717 

Farrincjton,  1  Swanston,  106,  A.  D.  1818, (&)  Sir  Thomas 
Plumer,  Master  of  the  Rolls,  expressed  liis  dissatisfaction 
with  those  early  authorities.  The  only  point  decided 
by  him  was,  that  future  creditors  could  not  impeach  a 
voluntary  settlement;  but,  in  pronouncing  judgment,  he 
said  "that  against  all  persons  claiming  under  the  settlor, 
the  recital  is  conclusive  ;  but  it  would  be  difficult  to  main- 
tain that  a  recital,  in  a  postnuptial  settlement,  of  ante- 
nuptial articles,  of  the  existence  of  which  there  is  no  dis- 
tinct proof,  would  be  binding  on  creditors.  Such  a  doc-  . 
trine  would  give  to  every  trader  a  power  of  excluding  his 
creditors,  by  a  recital  in  a  deed  to  which  they  are  not 
parties." 

§  730.  The  same  opinion  had  been  previously  expressed 
by  Lord  Northington,  with  respect  to  conveyances  of  real 
estate,  (although  apparently  without  the  knowledge  of  the 
Master  of  the  Rolls),  in  Spurgeon^.  Collier,  1  Eden,  55,  (c) 
A.  D.  1758.  There  an  absolute  conveyance  of  an  estate  had 
been  made  to  the  defendant  Collier,  who  executed  to  the 
grantor  a  defeasance  of  even  date,  on  the  payment  of  cer- 
tain moneys  ;  the  grantor  subsequently  conveyed  the  prop- 
erty to  his  son ;  but  Collier  prevailed  upon  the  latter  to 
give  up  to  him  the  defeasance.  The  grantor  and  his  son 
having  died,  the  heirs  of  the  son  brought  this  bill  to  redeem. 
The  defendants  Alston  and  wife  insisted  that  the  estate 

of  creditors,  to  set  aside  a  postnuptial  settlement,  reciting  that  it  was  made 
in  pursuance  of  an  antenuptial  parol  agreement.  In  1  Vesey,  19G,  the  same 
case  is  reported  quite  differently  ;  but  there  it  is  also  stated  that  he  expressed 
an  opinion  to  the  same  effect,  although  the  decision  is  represented  to  have 
been  chiefly  placed  upon  another  ground.  But  in  Shaw  v.  Jakeman,  4 
East,  201,  A.  D.  1803,  before  Mr.  Cox's  volume  was  published.  Lord  Ellen- 
borough  stated  that  the  point  liad  been  decided  in  Dundas  r.  Dutens.  On 
the  other  hand,  in  Randall  v.  Morgan,  12  Vesey,  67,  A.  D.  1805,  Sir  Wil- 
liam Grant,  Master  of  the  Rolls,  classed  this  remark  of  Lord  Thurlow,  with 
other  obiter  dicta  (see  page  74) ;  but  he  found  it  unnecessary  to  express  any 
opinion  upon  the  point,  as  he  thought  that,  in  the  case  before  him,  a  verbal 
promise  before  marriage  had  not  been  sufficiently  proved. 

{h)  S.  C,  Wilson's  Chancery,  88. 

(c)  This  volume  was  not  published  until  1818. 


718  Antenuptial  Agreements.  [Cli.  xx. 

had  been  settled  several  years  previously  by  Collier,  upon 
their  marriage ;  and  consequently  that  they  were  pur- 
chasers for  value  ;  and  Alston  said  in  his  answer  that  he 
had  no  notice  of  the  defeasance,  till  two  years  after  the  mar- 
riage. Tlie  proof  was  that  Collier  had  conveyed  the  prop- 
erty to  them  about  a  month  after  they  were  married,  by 
deed  reciting  the  marriage  as  the  consideration  ;  and  they 
endeavored  to  show  a  parol  agreement  before  marriage  to 
settle  it,  and  that  the  marriage  had  taken  place  before 
actual  settlement,  because  the  writings  could  not  be  finished 
in  season.  Lord  IS'orthington  decreed  a  redemption  against 
all  the  defendants,  saying  that  the  parol  agreement  was 
not  proved  ;  but  that,  if  it  had  been  proved,  the  case  would 
not  be  altered  ;  that  it  was  admitted  that  since  the  statute, 
although  the  promise  was  made,  Alston  could  have  no 
remedy ;  that  the  settlement  was  therefore  voluntary, 
because  it  could  not  be  compelled.  And  he  added  :  "But, 
if  such  a  parol  agreement  were  to  be  allowed  to  give  effect  to 
a  subsequent  settlement,  it  would  be  the  most  dangerous 
breach  of  the  statute,  and  a  violent  blow  to  credit ;  for  any 
man,  on  the  marriage  of  a  relation,  might  make  such  prom- 
ise, of  which  an  execution  never  could  be  compelled  against 
the  promisor;  and  the  moment  his  circumstances  failed, 
he  would  execute  a  settlement  pursuant  to  his  promise, 
and  defraud  all  his  creditors."  Although  the  plaintiff  in 
this  case  did  not  seek  relief  as  a  creditor,  the  decision  is 
justly  regarded  as  settling  the  rule,  that  all  postnuptial 
conveyances  of  real  estate,  in  consideration  only  of  an  ante 
nuptial  agreement,  are  voluntary. 

§  731.  And  whatever  doubt  may  have  remained,  whether 
the  same  ruling  would  apply  to  conveyances  and  transfers 
of  personalty,  has  apparently  been  dispelled  by  Lord 
Cran worth's  judgment,  in  Warden  v.  Jones,  2  De  Gex  and 
Jones,  76,  A.  D.  1857, {d),  affirming  the  decree  of  the  Mas- 
ter of  the  Rolls,  (Sir  John  Romilly),  as  leported  in  23 
Beavan,  487.  (e)     There  it  appeared  that  on  the  16tli  day 

(d)  S.  C,  27  Law  Journal,  N.  S.,  Chancery,  190;  and  4  Jurist,  N.  S.,  269. 

(e)  Also  in  26  Law  Journal,  N.  S.,  Chancery,  427;  and  3  Jurist,  N.  S.,  456. 


Art.  II.]  Antenuptial  Agreements.  719 

of  June,  1855,  the  defendant  Barnett,  being  considerably 
indebted  to  the  plaintiff  and  others,  married  a  Miss  Jones, 
who  was  the  registered  proprietor  of  certain  railway  shares; 
that  on  the  6th  of  July,  1855,  a  deed  of  settlement  was 
made,  (not  reciting  any  antenuptial  agreement),  whereby 
the  shares  were  to  be  sold,  and  5001.  of  the  proceeds  set- 
tled upon  Mrs.  Barnett  and  her  issue ;  and  that  the  same 
day  the  shares  were  sold,  and  the  5001.  invested  upon  the 
trusts  of  the  settlement ;  Barnett  having  applied  to  his  own 
use  the  residue  of  the  proceeds,  after  discharging  an  incuin- 
brance  upon  the  shares.  This  bill  was  filed  to  set  aside 
the  settlement,  as  fraudulent  against  creditors,  and  to  reach 
the  5001.  The  defences  interposed  by  the  wife  were,  first, 
that  the  case  was  taken  out  of  the  statute  of  frauds  by  a 
parol  antenuptial  promise  to  settle  the  property ;  sec- 
ondly, that  she  had  been  drawn  in  to  be  married  without 
a  settlement,  by  her  husband' s  fraudulent  conduct ;  with 
other  defences,  which  are  not  material  here.  The  evi- 
dence tended  to  show  that  before  the  marriage,  Barnett 
had  made  several  promises  to  her  and  to  her  father,  that 
all  her  property  should  be  settled  upon  her ;  that  the 
father' s  consent  to  the  marriage  was  given  only  upon  con- 
dition that  it  should  be  so  settled ;  that  Barnett  induced 
her  to  marry  him,  without  the  knowledge  of  her  father  or 
her  famil}^,  upon  a  promise  to  make  a  settlement ;  that  a 
few  days  before  they  were  married,  they  went  to  the  office 
of  a  solicitor,  to  have  a  settlement  prepared,  but  he  could 
not  get  it  ready  in  time  for  the  wedding  ;  and  that  Barnett 
said  that  the  marriage  would  make  no  difference,  and  the 
settlement  would  be  equally  good  if  made  afterwards. 

§  732.  The  Master  of  the  Rolls  made  a  decree  for  the 
plaintiff ;(/)  and  an  appeal  from  this  decree  was  dismissed 

■  (/)  After  saying  that  but  for  the  express  words  of  the  statute,  equity 
would  sustain  the  settlement,  on  the  ground  that  the  marriage  was  a  per- 
formance of  the  verbal  agreement,  his  Honor  examined  several  of  the  cases  in 
detail;  concluding  that  Dundas  v.  Dutens  was  overruled  by  later  decisions, 
and  expressing  the  opinion  that  the  cases  where  a  representation  was  held 
to  be  binding,  (a  question  fully  examined  in  article  iii  of  this  chapter),  pro- 


720  Antenuptial  Agreements.  [Cli.  xx. 

by  the  Chancellor.  His  Lordship  said  that  the  argument 
that  the  settlement  conld  not  be  fraudulent,  because  there 
was  a  moral  obligation  to  perform  it,  was  conclusively 
answered  by  Lord  Northington'  s  remarks  in  Spurgeon  v. 
Collier ;  and  that  there  was  no  proof  that  what  was  said 
to  the  wife,  respecting  the  validity  of  a  postnuptial  settle- 
ment, was  said  fraudulently.  He  added  that  where  there 
had  been  part  performance  by  something  more  than  a  mar- 
riage, as  in  Hammer sley  v.  De  Biel,{g)  equity  would 
relieve,  but  not  otherwise  ;  apparently  ignoring  a  distinc- 
tion taken  by  Sir  John  Romilly  in  the  court  below,  that 
in  the  cases  where  that  question  arose,  the  promise  was 
not  made  between  husband  and  wife.  Next  he  referred 
to  the  fact,  that  here  there  was  no  recital  in  the  settlement 
of  an  antenuptial  agreement ;  but  he  said  that  if  the  dis- 
tinction taken  thereupon,  by  Lord  Thurlow,  in  Dundas  v. 
Dutens,  is  correct,  the  whole  policy  of  the  statute  is  de- 
feated. ' '  It  cannot  be  enough, ' '  said  his  Lordship,  ' '  merely 
to  say  in  writing,  that  there  was  a  previous  parol  agree" 

ceeded  on  the  ground,  not  only  that  there  was  some  distinct  act  of  perform- 
ance in  addition  to  the  marriage,  but  also  that  the  transaction  was  between 
a  third  person  and  the  husband;  and,  for  the  latter  reason,  they  were  not 
applicable  where  it  was  between  husband  and  wife.  And  he  summed  up  his 
conclusions  upon  this  part  of  the  case  as  follows:  "I  therefore  hold,  that 
where  a  man  enters  into  a  parol  a£?reement  with  his  intended  wife,  and  noth- 
ing follows  but  the  marriage,  the  marriage  cannot  be  treated  as  part  per- 
formance of  the  parol  contract ;  and  that  the  carrying  into  effect  the  parol 
contract  after  the  marriage,  by  a  deed,  amounts  to  no  more  than  a  voluntary 
settlement."  Then,  after  saying  that  the  fraud  charged  upon  the  husband 
consisted  merely  in  misstating  the  law,  as  to  which  the  wife,  having  em- 
ployed a  solicitor,  "must  be  held  to  have  known  the  contrary,  or,  if  not,  to 
have  trusted  entirely  to  her  husband's  honor,"  as  in  Montacute  v.  Maxwell; 
he  referred  to  the  argument,  which  had  been  pressed  upon  him,  that  if  a  suit 
had  been  instituted  by  the  wife  against  the  husband,  and  he  had  not  pleaded 
the  statute  of  frauds,  a  decree  would  have  been  made.  He  declined  to  con- 
sider what  would  have  been  the  effect  of  such  a  decree  upon  creditors,  as 
the  question  did  not  arise,  saying  that  the  husband  was  no  doubt  bound  by 
the  arrangement ;  but  whether  the  creditors  were  boi:nd,  was  an  entirely 
different  question :  and.  after  disposing  of  the  other  objections,  and  express- 
ing his  regret  at  his  inability  to  relieve  the  wife,  he  granted  a  decree. 
ig)  Post,  §§  744-747. 


Art.  II.]  Antenuptial  Agreements.  721 

ment.  It  must  be  proved  tliat  there  was  such  an  agree- 
ment ;  and  to  let  in  such  proof,  is  precisely  what  the  statute 
meant  to  forbid."  These  remarks,  his  lordsliip  continued, 
were  made  lest  it  might  be  thought  that  this  case  was 
decided,  merely  on  the  ground  that  it  was  distinguishable 
from  Dwidas  v.  Dutens.  "I  incline  to  think,"  he  pro- 
ceeded, "that  even  if  this  settlement  had  contained  a 
statement,  that  it  was  made  in  pursuance  of  a  previous  ante- 
nuptial parol  agreement,  I  should  still  have  considered  it, 
as  I  now  consider  it,  void  against  creditors.  "(^) 

§  733.  The  same  general  doctrine,  that  a  verbal  ante- 
nuptial contract  will  not  sustain  a  postnuptial  settlement, 
as  against  creditors,  was  again  asserted  to  be  law  by  Sir 
John  Romilly,  in  Goldicutt  v.  Townsend,  28  Beavan,  445, 
A.  D.  1860,  which  is,  we  believe,  the  latest  English  case 
upon  the  point.  Tliere  his  Honor  held  that  a  bond  for 
6,000Z.,  given  after  the  marriage,  by  the  husband's  father, 
for  the  benefit  of  his  son,  in  pursuance  of  a  promise  to  that 
effect,  made  before  the  marriage,  could  not  be  allowed  as  a 
claim  against  his  estate,  after  his  decease,  to  the  prejudice 
of  creditors  for  value ;  although  it  would  be  good  against 
the  surplus,  after  paying  such  creditors.  But  the  case  is 
not  a  very  important  authority  upon  this  question,  as  the 
view,  which  the  court  took  of  the  other  questions,  would 
have  led  to  the  same  result,  even  if  the  law  upon  this  point 
had  been  adjudged  otherwise. 

§  734.  The  American  authorities  uphold  with  entire  una- 
nimity, the  general  doctrine  of  these  cases ;  although  in 
most  of  the  United  States,  the  English  rule,  as  to  the  right 
of  a  creditor  to  attack  a  voluntary  conveyance,  has  been 
restricted  by  legislative  modifications  of  the  statute  of  the 
13th  Elizabeth,  or  a  different  construction  of  its  provisions. 


(h)  Although  the  reasoning  in  this  case,  upon  the  points  mentioned  in  the 
text,  appears  to  be  unanswerable ;  it  is  not  so  clear  that  the  defence,  that  the 
wife  had  an  equity  to  a  settlement,  independent  of  the  antenuptial  parol 
agreement,  was  property  overruled. 
91 


723  Antenuptial  Agreements.  [Ch.  xx. 

In  Reade  v.  Livingston,  3  Johnson' s  Clianceiy  (New  York), 
481,  A.  D.  1818,  Chancellor  Kent,  after  a  full  and  able  dis- 
cussion of  the  question  upon  principle  and  authority,  held 
that  a  settlement  after  marriage,  in  pursuance  of  an  ante- 
nuptial verbal  agreement,  is  not  valid  against  an  antecedent 
creditor  of  the  grantor.  In  that  case  there  was  no  recital 
in  the  conveyance  of  the  previous  agreement,  and  the  evi- 
dence that  it  was  ever  made  was  very  loose  and  unsatis- 
factory ;  but  the  Chancellor  expressed  a  decided  opinion 
that  if  the  facts  had  been  otherwise,  the  decision  must 
have  been  the  same.  The  doctrine,  asserted  by  him,  that  a 
voluntary  conveyance  is  necessarily  void  as  against  exist- 
ing creditors,  is  no  longer  law  in  New  York ;(/)  but  the 
principle  that  a  conveyance  of  that  character  cannot  be 
supported,  as  against  creditors  who  are  entitled  to  impeach 
it,  by  proof  of  an  antenuptial  verbal  agreement,  even 
though  such  an  agreement  may  be  recited  in  the  convey- 
ance, has  been  recognized  by  numerous  American  authori- 
ties, and  may  now  be  considered  as  settled  in  our  juris- 
prudence, (y) 

§  735.  It  would  seem  to  follow,  from  the  course  of  rea- 
soning and  authority  upon  the  question  just  discussed, 
that  a  postnuptial  settlement,  made  in  pursuance  of  an 
antenuptial  verbal  agreement,  and  without  any  additional 
consideration,  is  also  voluntary,  as  between  the  parties 
and  their  privies.     It  has  been  said,  however,  that  a  set- 


(i)  Jackson  v.  Post,  15  Wendell,  588 ;  Babcock  v.  Eckler,  24  New  York, 
623  ;  Dygert  v.  Remerschnider,  32  New  York,  629,  ante  §  711. 

(y)  Andrews  v.  Jones,  10  Alabama,  400 ;  Izard  v.  Izard,  Bailey's  Equity 
(South  Carolina),  228;  Borst  v.  Corey,  16  Barbour  (New  York),  136;  Wood 
V.  Savage,  2  Douglass  (Michigan),  316;  Satterthwaite  v.  Emley,  3  Green's 
Chancery  (New  Jersey),  489 ;  Smith  v.  Greer,  3  Humphreys  (Tennessee), 
118 ;  Saunders  v.  Ferrill,  1  Iredell  (North  Carolina),  97 ;  Bayard  v.  Hoffman,  4 
Johnson's  Chancery  (New  York),  450 ;  Blow  v.  Maynard,  2  Leigh  (Virginia), 
29;  Jones  v.  Henry,  3  Littell  (Kentucky),  427;  Albert  v.  Winn,  5  Maryland, 
66;  Kinnard  v.  Daniel,  13  B.  Monroe  (Kentucky),  496;  Dygert  v.  Remer- 
schnider, 32  New  York,  629 ;  Davidson  v.  Graves,  Riley's  Chancery  (South 
Carolina),  219. 


Art.  II.]  Antenuptial  Agreements.  723 

tiement,  made  for  the  benefit  of  the  wife  or  children  of  the 
settlor,  may  be  sustained  as  founded  upon  a  valuable  con- 
sideration, on  the  ground  that  it  is  the  duty  of  every  man 
thus  to  provide  for  his  family. (/i)  But  this  doctrine  has 
since  been  overruled  ;  and  it  would  seem,  upon  principle, 
that  such  a  settlement  can  derive  no  additional  force  from 
the  fact  that  it  was  made  in  pursuance  of  an  antenuptial 
verbal  agreement.     There  are,  however,  some  dicta  to  the 


(k)  Lord  St.  Leonards  says  upon  this  question  :  "A  settlement  after  mar- 
riage upon  a  wife  or  children,  without  any  previous  agreement,  is  upon  good 
although  not  valuable  consideration.  It  is  a  performance  of  a  moral  obliga- 
tion. The  mere  agreement  by  parol,  before  marriage,  to  make  such, a  set- 
tlement, does  not  place  the  case  higher.  The  settlement  is  still  only  a 
performance  of  a  moral  obligation,  for  the  parol  pro.Tnise  is  rendered  unavail- 
able by  the  statute  of  frauds.  In  each  case  the  consideration  is  a  good  one, 
but  it  is  a  duty  of  imperfect  obligation  on  the  party  to  make  the  settlement. 
The  past  consideration  of  marriage  vs^ill  not  support  the  settlement,  and  the 
previous  parol  promise  is  not  binding ;  therefore  the  settlement  is  merely 
voluntary."  Sugden  on  Powers,  eighth  edition,  p.  G49.  Lord  St.  Leonards, 
while  chancellor  of  Ireland,  decided  that  a  written  promise  by  a  father  to 
his  son-in-law,  to  secure  an  annuity  to  the  daughter  of  the  promisor  and 
wife  of  the  promisee,  would  be  specifically  enforced,  upon  a  bill  filed  by  the 
husband  and  wife ;  on  the  ground  that  although  the  consideration  was  not 
valuable,  it  was  meritorious,  and  that  equity  would  interfere  in  cases  where 
the  consideration  was  of  that  character.  Ellis  v.  Nimmo,  Lloyd  and  Goold, 
temp.  Sugden,  333,  A.  D.  1835;  where  the  former  authorities  are  cited  and 
discussed  at  length.  But  is  said  that  his  successor  affirmed  the  decree  upon 
other  grounds.  And  Lord  Chancellor  Cottenham,  although  in  deciding  Dil- 
lon V.  Coppin,  4  Mylne  and  Craig,  G49,  A.  D.  1837,  where  the  point  arose, 
he  made  no  express  mention  of  Ellis  v.  Nimmo,  explicitly  disapproved  of  the 
latter  in  Jefierys  v.  Jefiferys,  Craig  and  Phillips,  138,  A.  D.  1841,  and  refused 
to  make  a  decree  under  similar  circumstances.  Vice  Chancellor  Shadwell 
also  disapproved  of  the  doctrine  of  Ellis  v.  Nimmo,  in  Holloway  v.  Heading- 
ton,  8  Simons,  324,  A.  D.  1837.  And  in  Moore  v.  Crofton,  3  Jones  and 
LaTouche,  438,  A.  D.  184G,  Lord  St.  Leonards  said,  that  although  he  thought 
Ellis  V.  Nimmo  was  decided  upon  sound  principles  of  equity,  he  was  aware 
that  the  opinion  of  the  profession  was  otherwise;  and  he  added  (page  443) : 
"  I  consider  that  decision  to  be  overruled  by  the  current  of  opinion  and  au- 
thority, and  I  have  no  desire  to  support  it  again^!t  the  general  opinion." 
These  observations  are  quoted  substSntially  to  the  same  effect,  although  his 
Lordship's  concession  is  not  made  quite  so  graceful,  in  S.  C,  9  Irish  Equity 
Reports,  347,  348. 


724  Antenuptial  Agreements.  [Ch.  xx. 

contrary,  and  it  has  even  been  said  that  a  recital  in  the 
conveyance  of  such  an  agreement  is  conclusive  evidence 
of  its  existence,  as  against  the  settlor  and  those  claiming 
under  him.(Z)  In  what  manner,  or  for  what  purpose,  the 
recital  is  thus  conclusive,  the  cases  do  not  very  clearly 
point  out.  Perhaps  it  may  be  regarded  as  the  written 
memorandum,  which  the  statute  requires ;  the  sufficiency 
of  which  will  be  the  subject  of  discussion  hereafter. 

§  736.  We  suppose  that  the  case  of  ArgeTibrigM  v. 
Campbell,  3  Hening  and  Munford  (Virginia),  144,  A.  D. 
1808,  must  have  proceeded  upon  the  ground  that  the  set- 
tlor was  concluded  by  such  a  recital,  if  indeed  the  decision 
can  be  supported.  There  the  plaintiffs  founded  their  title 
to  relief  upon  a  verbal  promise,  made  by  a  father  to  his 
daughter' s  intended  husband,  to  the  effect  that  if  he  mar- 
ried the  daughter,  he  would  leave  her  his  land  by  his  will. 
The  case  is  exceedingly  voluminous,  and  the  testimony 
was  very  conflicting  ;  but  the  facts  upon  which  the  major- 
ity of  the  court  proceeded,  in  determining  this  question, 
appear  to  have  been  briefly  as  follows.  The  father  had 
made  his  will,  before  the  engagement,  whereby  he  had  de- 
vised his  land  to  this  daughter  (Rebecca),  subject  to  the 
payment  of  50^.  to  another  daughter  (Hannah).  After  the 
engagement  was  formed,  he  expressed  his  satisfaction  with 
the  intended  marriage  to  the  daughter' s  suitor,  and  prom- 
ised the  latter,  that  if  it  took  place,  "he  should  have  the 
plantation  he  then  lived  on,  provided  he  complied  with  the 
terms  of  the  will ;  and  then  repeated  the  contents  thereof." 
The  marriage  took  place  ;  and  afterwards,  the  father  mani- 
festing a  design  to  alter  his  will,  he  was,  after  considerable 
solicitation,  persuaded  to  sign  an  instrument  in  writing,  in 
the  form  of  a  penal  bond  ;  the  condition  of  which  recited 
the  marriage  ;  that  he  had  agreed  to  give  the  land  to  his 
son-in-law,  and  his  heirs  forever,  after  his  own  decease ; 

(7)  Battersbee  v.  Farrington,  1  Swaiston,  106,  ante  §729;  Satterthwaite 
V.  Emley,  3  Green's  Chancery  (New  Jersey),  489 ;  Blow  v.  Maynard,  2  Leigh 
(Virginia),  29. 


Art..  II.]  Antenuptial  Agreements.  725 

and  the  better  to  comply  with  that  promise,  had  made  his 
will,  in  which  he  had  bequeathed  the  land  to  his  son-in- 
law,  and  his  heirs  ;  and  had  promised  that  it  should  be  his 
last  will,  as  far  as  it  related  to  said  lands  ;  whereupon  it 
was  provided  that  the  obligation  should  be  void,  in  case 
the  father  should  not  alter  that  will,  with  respect  to  the 
land  in  question,  or  convey  the  land  to  any  person  before 
his  decease,  (w)  Afterwards  the  defendant  Argenbright,  with 
full  notice  of  the  facts,  purchased  the  land  from  the  father. 
A  bill  was  thereupon  filed  by  the  son-in-law  and  his  wife, 
against  Argenbright  and  the  wife' s  father  ;  and  the  latter 
having  died,  pending  the  action,  a  decree  was  made  in  the 
court  below,  which  was  modified  .by  the  Court  of  Appeals, 
so  as  to  requii'e  the  defendant  Argenbright  to  convey  the 
land  to  the  wife,  and  account  for  the  rents  and  profits 
since  the  father' s  death ;  and  to  requii-e  the  husband  to  pay 
Hannah  50^.,  with  interest  from  the  same  time  ;  and  in  that 
form  it  was  affirmed  by  a  majority  vote.  The  prevailing 
opinions  substantially  concurred,  in  holding  that  the  pre- 
vious verbal  promise  was  a  sufficient  consideration,  to  up- 
hold the  writing  as  an  agreement ;  that  the  latter  was 
intended  to  conform  to  the  antenuptial  promise,  the 
variance  between  the  two  resulting  from  ignorance  of  the 
law  or  of  the  contents  of  the  will,  by  the  draftsman  ;  and 
that  it  might  be  corrected  by  the  \vill,  to  which  it  referred, 
as  "forming  the  standard  by  both  parties." 

§  737.  But  a  voluntary  postnuptial  settlement,  like 
every  other  executed  agreement,  is  valid  between  the  par- 
ties and  those  claiming  under  them  as  volunteers.  This 
principle  was  applied  in  a  remarkable  manner,  in  the  case 
of  HougMon  v.  IlougJiton,  14  Indiana,  605,  A.  D.  1860. 
There  an  action  was  brought  by  a  widow,  against  the 

(m)  Owing  to  the  manner  in  which  the  instrument  was  executed,  there 
was  much  doubt  whether  it  was  in  legal  effect  a  bond;  one  of  the  judges 
composing  the  majority  said  that  the  question  was  immaterial,  and  the  com- 
plainant* were  entitled  to  relief,  whether  it  should  be  treated  as  a  bond  or 
an  agreement;  the  other  judge  apparently,  though  not  explicitly,  concurred 
with  him  on  this  question.  • 


72^  Antenuptial  Ageeements.  [Ch.  xx. 

administrator  of  lier  husband,  to  recover  a  sum  of  money 
allowed  to  the  widow,  by  the  statute  of  descents,  etc.,  before 
any  distribution.  The  defence  was  that  the  plaintiff  and 
the  intestate  made  a  verbal  antenuptial  agreement,  to  the 
effect  that  the  intestate  would  pay  her,  during  coverture, 
one  third  of  the  net  profits  of  his  land  to  her  separate  use, 
and  claim  no  right  to  the  control  of  her  property,  during 
coverture  or  afterwards  ;  but  it  should  all  go  to  her  chil- 
dren by  a  former  marriage,  if  not  otherwise  disposed  of 
by  her  ;  and  she  relinquished  all  claim  to  any  portion  of 
his  property,  after  his  death,  and  agreed  that  it  should  all 
go  to  his  cbildren  by  a  former  marriage,  if  not  otherwise 
disposed  of  by  him.  The  husband  performed  as  much  of 
this  agreement  as  he  was  to  perform  during  the  coverture  ; 
but  the  court  below  held  that  it  was  invalid,  and  rendered 
judgment  for  the  plaintiff ;  which  was  reversed  on  appeal. 
The  reason  assigned  by  the  appellate  court  for  its  decision, 
was  that  inasmuch  as  the  property,  to  which  the  plaintiff 
relinquished  her  right,  was  in  the  husband' s  possession, 
and  after  his  death  in  his  administrator's  possession,  no 
act  was  required  to  be  done  by  her,  in  further  execution 
of  the  agreement  on  her  part ;  so  that  it  was  fully  executed 
by  both  parties.  Several  cases  were  then  cited,  where 
verbal  postnuptial  agreements  have  been  sustained,  and 
the  opinion  proceeded:  "The  foregoing  cases  show  that 
the  contract  might  have  been  valid,  even  if  it  had  been 
made  during  coverture.  It  was  affirmed  and  executed 
during  that  relation." 

§  738.  This  case  appears  to  be  directly  contradicted  by 
Mnch  V.  Mnch,  10  Ohio,  New  Series,  501,  A.  D.  1860, 
which  has  been  already  cited  in  connection  with  another 
point  made  by  the  defendants  in  support  of  their  answer,  (n) 
There  the  defendants  also  insisted  that  the  agreement  was 
taken  out  of  the  statute,  because  it  had  been  partly  per- 
formed. The  acts  of  performance  relied  upon  after  the 
marriage,  were  the  actual  use  and  enjoyment  by  the  wife 

(n)  See  ante,  §  717,  where  the  facts  are  fully  stated. 


Art.  II.]  Antenuptial  Agreements.  727 

of  her  property  with  the  husband's  assent,  and  particu- 
larly that  she  was  permitted  by  him  to  give  her  personal 
property  and  the  rents  of  her  lands  to  her  cliildren  by  a 
former  marriage.  Upon  this  point,  BrinkerhofF,  C.  J., 
said,  that  at  the  time  of  the  marriage,  the  agreement  was 
binding  upon  neither  party  ;  and  that  when  the  marriage 
was  completed,  tiie  husband  became  the  owner  of  her  per- 
sonal property,  and  of  the  proceeds  of  her  real  estate. 
Consequently  any  gifts  which  he  may  have  permitted  her 
to  make  were  his  gifts  ;  that  the  parties  could  not  occupy 
antagonistic  relations  with  respect  to  the  subject  of  the 
agreement,  because  no  legal  obligations  rested  upon  him  ; 
and  what  he  permitted  her  to  do  was  a  matter  of  mere 
grace  and  favor.  "Had  he  seen  proper,"  continued  the 
learned  Chief  Justice,  "to  make  these  gifts  to  her  children 
without  her  consent  and  against  her  remonstrances,  would 
they 'have  constituted  a  part  performance?  This,  we  sup- 
pose, would  not  be  claimed  ;  and  yet  in  legal  effect,  they 
would  have  been  the  same  as  they  were  when  made  by 
her  with  his  consent.  In  either  case  they  were  his  gifts." 
The  court  also  repudiated  the  distinction,  taken  in  Crane  v. 
Gough^{o)  between  an  action  and  a  defence,  founded  upon 
an  agreement  within  the  statute. 

§  739.  There  is  a  very  close  similarity  between  this  ques- 
tion, as  it  was  presented  in  these  two  cases,  and  that  arising 
in  some  of  the  cases,  where  the  allegation  was  tliat  there 
was  a  distinct  consideration  for  the  agreement,  in  addition 
to  the  marriage  \{p)  and  it  is  even  more  difficult  in  this  de- 
scription of  cases,  than  in  the  other,  to  determine  what  is 
the  true  rule.  In  each  the  difficulty  springs  out  of  the 
equivocal  character  of  the  acts  of  performance  relied  upon. 
But  here  the  question  relates  to  the  effect  of  such  acts 
upon  a  verbal  agreement  plainly  within  the  terms  of  the 
statute  ;  and  the  doubt  grows  out  of  the  fact  that  the  con- 
duct of  married  persons  towards  each  other,  in  matters 


(o)  Ante,  §  712. 

(p)  See  chapter  xix,  article  iU, 


728  Antenuptial  Agreements.  [Ch.  xx. 

of  property,  is  not  to  be  tested  by  the  rules,  which 
determine  the  effect  of  similar  acts,  between  persons  who 
occupy  no  such  relations  to  each  other.  The  facts  proved 
in  Houghton  v.  Houghton  and  in  Finch  v.  Finch  would  be 
sufficient  to  establish  the  agreement  and  its  subsequent 
performance,  if  they  had  transpired  between  strangers ; 
but  passing  between  husband  and  wife,  they  are  quite  con- 
sistent with  the  theory,  that  the  husband  merely  adopted  a 
particular  method  of  supplying  the  wife  with  money  for 
her  personal  use.  Still  it  is  but  reasonable  to  conclude, 
that  a  long  continued  and  uniform  course  of  conduct,  on 
the  part  of  the  husband,  either  by  acquiescence  or  by 
affirmative  action,  inconsistent  with  his  marital  rights,  is 
an  act  of  performance  of  some  agreement  on  his  part. 
But  the  extent  and  character  of  the  agreement,  which  such 
acts  indicate,  and  their  effect  upon  the  question  whether  it 
was  antenuptial  or  postnuptial,  must  perhaps  be  left  to 
depend  upon  the  circumstances  of  each  particular  case. 

§  740.  But  it  is  evident  that  if  the  acts  of  performance, 
upon  whioh  the  party  relies,  are  of  such  a  character,  as  to 
indicate  clearly  that  their  continuance  was  dependent 
entirely  upon  the  pleasure  of  the  person  performing  them, 
they  cannot  be  made  available  as  evidence  of  any  definite 
and  binding  agreement.  The  most  familiar  and  obvious 
illustration  of  this  proposition,  is  where  one  party  relies 
upon  a  will  made  by  the  other.  There  are  some  nice  dis- 
tinctions in  the  cases,  as  to  the  effect  of  a  contract  to  be  per- 
formed by  making  or  not  making  a  will,  or  not  altering  a 
will  already  made  ;  but  it  is  sufficient  for  our  present  pur- 
pose to  say,  that  while  a  contract  to  leave  a  particular  sum 
of  money,  or  certain  specified  property,  by  will,  may  be 
specifically  enforced  \{q)  it  is  well  settled  that  the  execution 


{q)  Hammersley  v.  De  Biel,  12  Clark  &  Finnelly,  45,  post  §  744 ;  Loffus  v. 
Maw,  3  Griffard,  592.  A  contract  to  "  recognize  "  a  son  in  a  will,  "  in  common 
with  the  rest  of  my  family,"  is  too  vague  to  be  enforced.  Kay  v.  Crook,  3 
Smalc  &  Giffard,  407  ;  3  Jurist,  N.  S.,  104.  So  where  a  testator  had  already 
made  a  will,  bequeathing  12,500Z.  to  his  daughter ;  and  in  her  marriage  pro- 


Art.  II.]  Antenuptial  Agreements.  729 

of  a  will  cannot  be  relied  upon  as  evidence  that  such  a  con- 
tract was  made  between  the  parties,  or  as  an  act  of  perform- 
ance wliicli  will  take  a  verbal  antenuptial  agreement  to  that 
effect  out  of  the  statute.  This  was  one  of  the  points  deter- 
mined in  Caton  v.  Caton^  Law  Reports,  1  Chanceiy 
Appeals,  137,  a  summary  of  which  will  be  given  in  the  fol- 
lowing article,  (r) 

§  741.  A  similar  rule  was  laid  down,  in  Potts  v.  Merrit^ 
14  B.  Monroe  (Kentucky),  406,  A.  D.  1854.  This  was 
a  bill  brought  by  a  wife  against  her  husband,  and  a  per 
son  to  whom  he  had  either  sold  or  given  certain  slaves, 
the  property  of  the  wife  before  marriage.  The  com- 
plainant founded  her  title  to  relief  upon  a  verbal  antenup- 
tial agreement  between  her  and  her  husband,  by  which  she 
was  to  retain  the  title  to  her  slaves,  and  have  the  control 
and  power  of  disposition  of  them,  notwithstanding  the  mar- 
riage. It  appeared  that  after  the  marriage,  the  husband 
executed  an  instrument  in  writing,  "purporting  to  be  a 
conditional  ratification,  or  rather  adoption  of  a  will,  which 
had  been  previously  signed  and  acknowledged  by  the  com- 
plainant," bequeathing  the  slaves  to  her  brother ;  but  that 


posals  he  stated  that  he  would  give  her  2,000Z.  as  a  portion,  and  in  addition, 
that  "she  is  and  shall  be  noticed  in  my  will,  but  to  what  further  amount  I 
cannot  precisely  say,"  it  was  held  that  there  was  no  binding  contract  beyond 
the  2,000Z.  Moorhouse  v.  Coivin,  18  Beavan,  341;  21  Law  Journal,  N.  S,, 
Chancery,  177 ;  S.  C.  on  Appeal,  21  Law  Journal,  N.  S.,  Chancery,  782. 
But  a  marriage  contract  to  give,  by  will  or  otherwise,  to  a  niece,  "so  much 
in  money  or  in  valuable  efifects,"  as  the  party  should,  by  his  will,  give  or 
bequeath  to  his  next  of  kin,  or  any  other  person,  will  be  specifically  enforced, 
although  it  is  in  the  form  of  a  bond  with  a  penalty.  Logan  v.  Wienholt, 
1  Clark  and  Finnelly,  611.  And  a  contract  to  leave  a  daughter  "her  share 
of  whatever  property  I  may  die  possessed  of,"  will  entitle  her  to  a  decree  for 
an  equal  share  of  the  testator's  personal  property,  after  deducting  the  widow's 
one  third,  and  debts  and  expenses.  Laver  v.  Fielder,  32  Beavan,  1  ;  32  Law 
Journal,  N.  S.,  Ch.,  365;  9  Jurist,  N.  S.,  190;  11  Weekly  Reporter,  245;  7 
Law  Times,  N.  S.,  602.  See  also  Barkworth  v.  Young,  26  Law  Journal,  N.  S., 
Chancery,  153;  4  Drewry,  1 ;  and  Loxley  v.  Heath,  27  Beavan,  523 ;  S.  C. 
on  appeal,  1  De  Gex,  Fisher  and  Jones,  489. 
(r)  See  §§  756-758. 
92 


730  Antenuptial  Agreements.  [Ch.  xx. 

afterwards  lie  had  transferred  them  to  the  defendant  Merrit 
for  a  merely  nominal  consideration,  and  had  executed  an 
express  revocation  of  the  former  instrument.  The  Court 
of  Appeals,  affirming  a  decree  of  the  Circuit  Court,  held 
that  the  antenuptial  verbal  agreement  was  not  saved  from 
the  operation  of  the  statute,  by  the  subsequent  instrument 
executed  by  the  husband;  even  if  the  latter  could  be 
regarded  as  an  admission  that  the  bequest  was  made  in 
pursuance  of  the  agreement ;  and  that  the  instrument  was 
in  fact  merely  a  will,  revocable  at  the  pleasure  of  the 
husband. 


AETICLE  III. 

Whether,  in  the  ahsence  of  fraud,  eqiiity  takes  any  distinction,  for  the  purpose  of  enforcing 
specific  performance,  hetween  an  antenuptial  verbal  agreement,  and  an  antenuptial  verbal 
representation  of  an  intention. 

§  742.  We  should  leave  this  discussion  in  a  very  imper 
feet  and  unsatisfactory  state,  if  we  were  to  close  it  without 
bestowing  some  attention  upon  a  question,  which  seems  to 
have  attained  all  its  prominence  in  the  English  equity 
courts,  within  the  last  twenty  five  years ;  and  yet  has 
already  become,  to  use  the  language  of  an  eminent  judge, 
"one  of  the  most  difficult  and  important,  and  the  most 
perplexed  by  authority,  of  any  of  the  heads  of  equity,  {a) 
We  approach  it  with  much  hesitation,  not  only  in  conse- 
quence of  its  perplexing  character,  and  the  conflict  of 
opinion  between  the  greatest  equity  lawyers,  to  which  it 
has  given  rise ;  but  also  because  the  cases  where  it  has 
been  discussed,  are  so  voluminous,  and  the  distinctions 
between  them  are  so  nice,  as  to  render  the  task  of  conden- 
sation within  reasonable  limits,  without  running  into 
obscurity,  exceedingly  delicate  and  arduous. 

§  743.  The  doctrine  to  be  examined  appears  to  proceed 
from  the  conflict,  which  has  already  been  mentioned,  be- 

(a)  Sir  John  Stuart  in  Williams  v.  Williams,  37  Law  Journal,  N.  S.,  Chan- 
cery, 854,  post  §§  759,  760. 


Art.  III.]         Antenuptial  Agkeements.  731 

tween  the  express  terms  of  this  provision  of  the  statrate  of 
frauds,  and  the  familiar  equitable  rulfes,  whereby  relief  is 
granted,  under  certain  circumstances,  to  a  person  who  has 
performed  a  verbal  agreement  within  the  statute.  The  courts 
have  been  reluctantly  compelled  to  hold,  that  although  a 
marriage,  contracted  upon  the  faith  of  a  verbal  promise, 
amply  fulfils  every  condition  upon  which  depends  the 
interference  of  equity  in  other  cases,  yet  the  positive  lan- 
guage of  this  provision  requires  them  to  deny  any  relief, 
wherever  it  applies ;  notwithstanding  the  circumstances 
of  extreme  hardship,  which  generally  j^resent  themselves 
when  the  question  arises.  But  it  is  quite  clear,  both  upon 
principle  and  authority,  that  the  statute  is  confined  to 
agreements^  and  that  it  has  no  application  to  rejyresenta- 
tions.ip)  And  thereupon  this  question  arises:  whether, 
when  one  party  in  addition  to  promising,  or  in  place  of 
promising  to  do  some  act  for  the  benefit  of  another,  in 
consideration  of  the  latter' s  marriage,  represents  that  it  is 
his  intention  to  do  the  act,  in  case  the  marriage  shall  be 
contracted,  the  latter,  having  contracted  the  marriage 
upon  the  faith  thereof,  is  entitled  to  maintain  an  equitable 
action,  for  the  purpose  of  enforcing  the  fulfilment  of  the 
representation. 

§  744.  The  perplexities,  which  now  surround  this  sub- 
ject, may  be  traced  to  the  remarks  of  certain  judges, 
rather  than  to  the  efiect  of  the  determination,  in  the  lead- 
ing case  of  Hammer sley  v.  De  Biel,  decided  by  the  House 
of  Lords  in  the  year  1845,  and  reported  in  12  Clark  and 
Finnelly,  45  ;  also  known  as  De  Bell  v.  Thomson,  under 
which  title  the  decision  of  the  Master  of  the  Rolls  is 
reported  in  3  Beavan,  469,  A.  D.  1841.  This  was  an  action 
brought  by  an  infant  against  the  executors  of  John  Poulett 
Thomson,  his  grandfather,  to  obtain  payment  out  of  the 
assets  of  10,000Z.,  to  which  he  insisted  he  was  entitled,  under 
the'  provisions  of  a  njemorandum  entered  into  between  his 
father,  (the  Baron  de  Biel,)  and  two  of  the  sons  of  Mr. 

(6)  See  ante,  §§  683-686. 


732  Antenuptial  Agreements.  [Ch.  xx. 

Thomson,  acting  in  the  latter' s  name,  in  his  behalf,  and 
by  his  authority,  in  contemplation  of  the  marriage  of  the 
Baron  with  Mr.  Thomson' s  daughter.  Several  points  were 
taken  in  the  cause,  but  it  is  believed  that  the  following 
is  a  statement  of  all  that  is  material  upon  this  ques- 
tion. The  memorandum,  (which  was  not  subscribed  by 
any  one,)  besides  mentioning  certain  provisions  which  Mr. 
Thomson  proposed  to  make  immediately  for  his  daughter 
and  the  issue  of  the  marriage,  recited  that  the  Baron  de 
Biel  was  to  obtain  the  means  of  settling  on  her  a  jointure 
of  500Z.  per  annum  during  her  life,  in  case  she  should  sur- 
vive him,  secured  upon  his  estate  in  Mecklenburg ;  and 
that  Mr.  Thomson  "intends  to  leave  a  further  sum  of 
10,000^.  in  his  will  to  Miss  Thomson,  to  be  settled  on  her 
and  her  children,  the  disposition  of  which,  supposing  she 
has  no  children,  will  be  prescribed  by  the  will  of  her 
father."  Baron  de  Biel  accordingly  secured  to  JMiss 
Thomson  a  yearly  jointure  of  6001.  out  of  his  estate,  his 
brother  joining  in  the  instrument,  as  required  by  the  local 
law ;  and  shortly  afterwards  the  marriage  took  place, 
without  any  further  settlement  being  made  ;  but  after  the 
marriage,  a  settlement  was  prepared  and  executed,  whereby 
Mr.  Thomson  made  the  provisions  mentioned  in  the  mem- 
morandum,  except  the  one  relating  to  the  10,000^.,  which 
he  was  to  leave  by  his  will ;  and  that  provision  was  not 
mentioned  in  the  settlement.  The  Baroness  died  during 
the  year  following  the  marriage,  leaving  the  plaintiff  her 
only  child ;  and  about  eleven  years  afterwards,  Mr.  Thom- 
son died ;  and  his  will  made  no  provision  for  the  10,000?. 

§  745.  Three  defences  were  interposed  by  the  executors ; 
one  of  which  was  that  the  memorandum  was  a  mere  propo- 
sition, not  an  agreement,  and  another  that  it  was  void  by  the 
statute  of  frauds,  because  it  was  not  signed.  Upon  the  lat- 
ter point  the  Master  of  the  Rolls  (Lord  Langdale,)  said  that 
inasmuch  as  it  appeared  that  after  the  marriage  Mr.  Thom- 
son wrote  a  letter  to  Baron  de  Biel,  referring  to  the  memo- 
randum, as  stating  the  terms  of  the  engagement  made  by 
him  before  the  marriage,  this  letter  was  either  a  sufficient 


Art.  III.]         Antenuptial  Agreements.  733 

note  of  tlie  agreement  signed  by  the  party  to  be  charged, 
or  a  sufficient  recognition  of  the  use  of  his  name  in  the 
memorandum;  "and,  so  thinking,"  continued  his  Lord- 
ship, "it  does  not  appear  to  me  to  be  necessary  to  deter- 
mine whether  the  use  of  the  name  in  the  memorandum, 
be,  of  itself,  a  sufficient  signature  of  Mr.  Thomson  by  his 
agents  ;  or  whether  the  provision  of  the  jointure  by  Baron 
de  Beil  takes  the  case  out  of  the  statute  ;  or  whether,  inde- 
pendently of  the  statute,  this  court,  for  the  prevention  of 
fraud,  would  compel  the  defendants  to  realize  the  expec- 
tations on  the  faith  of  which  the  marriage  was  contracted." 
His  Lordship  then  said  that  by  the  execution  of  the  settle- 
ment and  the  solemnization  of  the  marriage  by  the  Baron 
de  Beil,  the  proposals  and  intentions,  which  were  previ- 
ously subject  to  revision,  became  an  agreement  which  Mr. 
Thomson  was  bound  to  perform  ;  and  he  accordingly  made 
a  decree  for  the  payment  of  the  10,000/^.  and  interest. 

§  746.  An  appeal  having  been  taken  from  this  decision 
to  the  Lord  Chancellor,  (Lord  Cottenham,)  it  was  affirmed, 
and  the  appeal  dismissed.  Lord  Cottenham' s  opinion  is 
given  in  a  note  to  12  Clark  and  Finnelly,  61.  Upon  the 
question  whether  there  was  any  binding  agreement  between 
the  plaintiff's  father  and  Mr.  Thomson,  he  said  tliat  if  it 
was  necessary  to  find  a  contract,  such  as  usually  accom- 
panies transactions  of  importance,  "there  may  not  be 
found  in  the  memorandum,  or  in  the  other  evidence  in  the 
cause,  proof  of  any  such  contract;"  but  that  no  formal 
contract  was  required.  "A  representation,"  he  contin- 
ued, "made  by  one  party  for  the  purpose  of  influencing 
the  conduct  of  the  other  party,  and  acted  on  by  him,  will, 
in  general,  be  sufficient  to  entitle  him  to  the  assistance  of 
this  court  for  the  purpose  of  realizing  such  representation." 
And  after  citing  several  authorities,  his  Lordship  conclud- 
ed this  branch  of  the  case,  by  saying  that  he  was  of  opinion 
"that  the  expressions  used  in  tlie  proposed  arrangement, 
acted  on  as  they  were,  became  obligatory  on  the  party  on 
whose  behalf  the  proposition  was  made."  Upon  the  ques- 
tion whether  the  defence  could  be  sustained  under  tha 


734  Antenuptial  Ageeements.  [Ch.  xx. 

statute  of  frauds,  he  thought  that  the  writing  of  Mr.  Thom- 
son' s  name  several  times  in  the  body  of  the  memorandum 
was  a  sufficient  signing  :  but  that  independently  of  this,  the 
letter  was  sufficient  for  the  reason  given  by  the  Master  of 
the  Rolls.  And  his  Lordship  also  added :  ' '  This  case  does 
not  rest  solely  upon  that  ground  ;  for  though  it  has  been 
decided  that  a  marriage  is  not  per  se  a  part  performance 
of  a  parol  agreement,  so  as  to  take  the  case  out  of  the 
statute,  there  was,  in  the  dealing  between  these  parties,  an 
important  act  by  the  intended  husband  in  execution  of  the 
proposed  arrangement.  He  was  informed  by  it  that  the 
arrangement  proposed  would  be  sufficient  for  him  to  act 
upon,  and  that  he  should  forward,  as  early  as  possible,  a 
joint  engagement  for  himself  and  his  brother,  settling  5001. 
a  year  on  the  intended  wife,  which  was  done." 

§  747.  An  appeal  from  Lord  Cottenham'  s  decree  was 
taken  to  the  House  of  Lords,  where  it  was  affirmed  ;  but 
the  question  under  the  statute  of  frauds  did  not  arise,  the 
counsel  for  the  appellant  having  withdrawn  the  point,  in 
consequence  of  his  "  seeing  a  strong  inclination  of  opinion 
against  him."  The  speeches  delivered  in  the  House  of 
Lords  consequently  turned  chiefly  upon  the  question, 
whether  the  memorandum  was  binding  upon  Mr.  Thom- 
son, upon  principles  independent  of  the  statute ;  and  of 
these,  the  determination  of  the  court,  respecting  the  nature 
of  the  liability  which  it  created,  is  alone  important  here. 
The  then  Chancellor,  (Lord  Lyndhurst,)  after  arguing  that 
the  provision  in  question  was  not  to  be  optional  with  Mr. 
Thomson,  stated  the  rule  to  be  "thart:  if  a  party  holds  out 
inducements  to  another,  to  celebrate  a  marriage,  and  holds 
them  out  deliberately  and  plainly,  and  the  other  party 
consents,  and  celebrates  the  marriage  in  consequence  of 
them;  if  he  had  good  reason  to  expect  that  it  was  intended 
that  he  should  have  the  benefit  of  the  proposal  which  was 
so  held  out,  a  court  of  equity  will  take  care  that  he  is  not 
disappointed,  and  will  give  effect  to  the  proposal."  Lord 
Brougham  reviewed  the  evidence  at  some  length,  and  con- 
cluded that  the  memorandum  was  in  truth  an  agreement, 


Art.  III.]       ■  Antenuptial  Agreements.  735 

and  one  of  a  very  formal  nature  ;  but  he  said  that  he  agreed 
with  and  adopted  all  the  arguments  of  the  judges  below. 
Lord  Campbell  expressed  his  concurrence  with  the  opin- 
ions of  Lord  Lyndliurst  and  Lord  Brougham  ;  but  ai'ter 
saying  that  the  objection  arising  under  the  statute  of  frauds 
was  clearly  untenable,  in  consequence  of  the  letter  of  Mr. 
Tliomson,  he  added  that  he  fully  agreed  with  Lord  Cotten- 
ham  in  his  doctrine,  (quoting  the  latter' s  language,)  as  to 
the  effect  in  equity  of  a  representation  made  to  iniluence 
another  party,  and  acted  on  by  him  ;  and  that  unless  that 
was  the  rule  the  most  monstrous  frauds  would  be  com- 
mitted. "Some  fraudulent  father,"  said  his  Lordship, 
"might  hold  out  to  the  suitor  of  his  daughter,  that  he 
meant  to  make  a  settlement  upon  his  daughter  and  her 
issue.  The  marriage  .would  take  place  in  the  belief  that 
that  settlement  would  be  made  ;  and  then,  after  the  mar- 
riage, he  might  say,  '  This  was  only  an  intimation  of  my 
intention  at  the  time ;  I  have  changed  my  mind,  and  I 
will  not  give  her  a  shilling.'  That  would  be  most  unjust ; 
and  to  prevent  such  frauds,  this  doctrine  has  been  laid 
down,  and  I  think  has  been  most  properly  laid  down,  and 
ought  to  be  acted  upon."  But  his  Lordship  also  said  that 
here  was  more  than  a  representation,  for  the  memorandum 
was  a  formal  instrument ;  that  the  Baron  de  Biel  had  done 
all  that  which  they  expected  him  to  do,  that  is,  to  settle 
the  5001.  a  year  upon  his  wife,  if  she  survived  him  ;  and 
that  a  very  useful  and  necessary  rule  would  be  infringed 
upon,  unless  the  House  should  "hold  in  this  case  that  the 
contract  was  binding,  "(c) 


(c)  It  will  be  noticed  that  the  Master  of  the  Rolls  rested  his  judgment  in 
this  cause,  entirely  upon  the  idea  that  there  was  a  contract  between  the 
Baron  and  his  father-in-law;  and  that  if  the  memorandum  was  in  any 
respect  deficient  in  satisfying  the  requirements  of  the  statute  of  frauds,  all 
such  deficiencies  were  supplied  by  the  subsequent  letter.  Regarding  it  as 
a  contract,  it  would  seem  clear  that  the  marriage  alone  would  have  sufficed 
to  entitle  the  plaintiff  to  relief,  had  there  been  no  mention  in  the  memoran- 
dum of  the  jointure ;  and  the  effect  of  the  settlement  of  the  500/.  per 
annum  was  (not  to  control  the  application  of  the  statute,  but)  merely  to  fulfil 
a  condition  precedent,  in  addition  to  the  marriage,  created  by  the  peculiar 


736  Antenuptial  Agreements.  [Ch.  xx. 

§  748.  But  if  the  principles  laid  down  in  Ham-  nersley  v. 
De  Biel  tend  to  weaken  the  authority  of  the  cases,  holding 
that  marriage  alone  will  not  entitle  a  party  to  the  specific 
performance  of  a  promise,  the  result  is  not  attained  with- 
out repeated  disclaimers  of  such  an  effect,  by  the  judges 
who  determined  it,  and  by  other  eminent  equity  judges. 
In  Lassence  v.  Tierney,  1  Macnaghten  and  Gordon,  551, 
A.  D.  1849,  (^)  Lord  Cottenham  again  disavowed  any 
intention  to  infringe  upon  the  rule  previously  established. 
This  case  presented,  with  other  questions,  one  arising  out 
of  an  antenuptial  parol  agreement  between  husband  and 
wife,  to  the  effect  that  the  husband  should  invest  3,000Z., 
part  of  the  wife' s  property,  in  the  purchase  of  a  govern- 
ment annuity  for  his  life,  and  for  his  own  benefit ;  that  she 

provisions  of  the  instrument.  Had  the  two  appellate  courts  simply  con- 
curred in  the  views  of  Lord  Langdale  upon  this  question,  the  case  would 
have  been  an  authority  under  the  statute  of  frauds,  only  with  respect  to  the 
sufficiency  of  the  writing;  but  Lord  Cottenham  distinctly  intimated  that 
here  was  no  contract;  and  he  based  his  judgment  upon  the  effect  in  equity  of 
a  representation,  treating  a  representation  of  an  intention  to  do  an  act,  as 
having  the  same  effect  in  equity  as  a  representation  of  an  existing  fact, 
designed  to  influence  the  conduct  of  another,  and  upon  the  faith  of  which 
the  latter  has  acted.  If  such  was  indeed  the  chai'Kcter  of  the  transaction, 
and  if  his  Lordship  correctly  stated  the  equitable  rule  applicable  to  such  a 
representation,  it  appears  to  be  quite  unimportant  whether  there  was  or  was 
not  any  writing ;  for,  as  we  have  already  often  remarked,  the  statute  speaks 
only  of  an  agreement,  not  of  a  representation.  And  the  statute  of  frauds 
being  out  of  the  way,  the  same  consequence  must  follow  from  Lord  Cotten- 
ham's  ruling  upon  the  effect  of  a  representation,  which  follows  from  that  of 
the  Master  of  the  Rolls,  upon  the  effect  of  a  contract;  namely,  that  unless  the 
representation  was  by  its  terms  conditional  upon  the  performance  of  some 
act,  in  addition  to  the  marriage,  the  completion  of  the  marriage  would,  of 
itself,  entitle  the  person  to  whom  it  was  made,  to  call  upon  the  court  to 
decree  a  specific  performance.  The  same  observations  apply  to  the  reasoning 
of  Lord  Lyndhurst;  to  Lord  Brougham's  general  approval  of  Lord  Cotten- 
ham's  ruling ;  and,  particularly,  to  that  part  of  Lord  Campbell's  argument, 
which  treats  the  memorandum  as  a  representation.  Indeed,  it  would  appear 
from  the  latter's  illustration  that  he  fully  accepted  the  consequences  of  his 
reasoning;  although  Lord  Cottenham  and  Lord  Lyndhurst  took  great  pains 
to  disclaim  them. 

id)  S.  C,  2  Hall  and  Twells,  115;  14  Jurist,  182. 


Art.  III.]  Antenuptial  Ageeements.  737 

should  be  entitled  to  hold  and  enjoy  all  the  residue  of  her 
property  to  her  separate  use ;  and  that,  if  necessary,  a 
proper  settlement  should  be  executed  by  tliem  respect- 
ively. The  wife  had  filed  a  bill  setting  forth  this  agree- 
ment, and  that  it  had  been  executed  by  investing  the 
3,000Z.,  and  praying  that  her  rights  might  be  declared ;  and 
afterwards  an  indenture  had  been  made  between  her  hus- 
band, herself,  and  a  trustee,  purporting  to  be  a  settlement 
in  accordance  with  the  terms  of  that  agreement ;  but  it  had 
never  been  acknowledged  by  the  wife  as  required  by  the 
statute  of  3d  and  4th  William  IV.  The  wife  having  died, 
the  husband  filed  this,  bill  of  revivor  and  supplement  against 
her  heir  at  law,  praying  that  the  antenuptial  verbal  agree- 
ment might  be  enforced,  and  for  that  purpose,  that  the 
defective  acknowledgment  of  the  deed  of  settlement  might 
be  supplied ;  and  that  her  will  in  his  favor,  executed  in 
pursuance  of  a  power  given  to  her  in  the  settlement,  might 
be  established,  as  a  valid  execution  of  the  power. 

§  749.  The  Vice  Chancellor  dismissed  the  bill,  and  upon 
appeal  his  decision  was  afiirmed  by  the  Chancellor.  His 
Lordship  thought  that  the  evidence  of  the  agreement  was 
not  sufficient  to  charge  the  heir;  but  upon  the  merits  no 
case  had  been  made  against  him.  The  alleged  contract 
was  entirely  for  the  benefit  of  the  wife  ;  nothing  had  been 
given  up  by  the  husband;  he  was  to  take  the  3,000^. 
which  he  did  take,  and  contracted  that  the  wife  should 
enjoy  the  rest  of  her  property.  After  some  further  com- 
ments upon  the  facts,  his  Lordship  proceeded  to  say  that 
if  the  wife  had  been  living  nothing  could  have  been  asserted 
against  her,  because  "there  is  nothing  against  her  but  a 
parol  contract  before  marriage,  and  nothing  but  marriage 
following,  which  will  not  support  the  contract ;  and  such 
a  contract  cannot  be  carried  into  effect  under  the  statute  of 
frauds."  And  he  added  that  he  took  care  in  Hammer sley 
V.  De  Biel  to  guard,  against  any  conclusion  to  the  contrary, 
by  saying  that  it  was  distinguishable,  because  in  that  case, 
the  husband  having  contracted,  before  marriage,  to  dc 
something,  and  having  done  it,  there  was  part  performance 
93 


738  Antenuptial  Agreements.  [Ch.  xx. 

of  the  contract,  relating  to  property  to  which  he  was  enti- 
tled ;  and  the  question  turned  upon  whether  the  persons 
who  assumed  to  contract  for  the  wife' s  father,  were  author- 
ized so  to  do.  His  Lordship  also  mentioned  two  other 
reasons  for  dismissing  the  bill  in  the  case  before  him  ;  and 
he  said  that  either  of  the  three  was  sufficient  to  dispose  of 
it,  as  between  the  devisee  and  the  heir. 

§  760.  Another  eminent  equity  judge  expressed  the  same 
opinion,  in  Surcome  v.  Pinniger,  22  Law  Journal,  JSTew 
Series,  Chancery,  419,  A.  D.  1853.  (e)  There  the  question 
was,  whether  Mr.  Chartres,  the  son-in-law  of  Mr.  Aylwyn, 
an  intestate,  or  the  administrator  of  Mr.  Aylwyn,  was 
entitled  to  certain  moneys  which  had  been  paid  into  court, 
as  the  price  of  certain  leasehold  property,  which  a  corpo- 
ration had  taken  under  an  act  of  Parliament.  The  mate- 
rial facts  were,  that  after  Mr.  Chartres  had  proposed 
marriage  to  the  daughter  of  Mr.  Aylwyn,  the  latter  informed 
him  that  it  was  his  intention  to  give  the  property  in  ques- 
tion, of  which  he  held  the  leasehold  title,  to  them  on  their 
marriage  ;  and,  after  their  marriage,  he  gave  up  possession 
to  Mr.  Chartres,  delivered  to  him  the  lease  and  other  docu- 
ments, and  directed  the  tenants  to  pay  their  rents  to  him  ; 
and  Mr.  Chartres  went  to  reside  in  the  house,  expended  a 
considerable  sum  of  money  in  repairs,  and  received  the 
rents  for  such  parts  of  it  as  he  did  not  occupy.  The  Vice 
Chancellor  directed  the  money  to  be  paid  to  Mr.  Chartres ; 
and  this  order  was  affirmed  by  the  Lords  Justices.  Lord 
Justice  Knight  Bruce,  after  reciting  the  facts,  merely  added 
that  it  had  been  often  decided,  that  under  such  circum- 
stances, a  parol  agreement  will  be  taken  out  of  the  statute 
of  frauds  ;  but  Lord  Justice  Turner  referred  to  Hammers- 
ley  V.  De  Biel  and  Lassence  v.  Tierney,  saying  that  there 
was  no  conflict  between  them,  and  here  there  had  been  part 
performance  of  the  parol  agreement,  by  delivery  of  posses- 
sion to  Mr.  Chartres,  and  a  considerable  expenditure  by 
him  upon  the  property :  it  was  not  therefore  a  case  where 

(e)  S.  C,  3  De  Gex,  Macnaghten  and  Gordon,  571 ;  and  17  Jurist,  196, 


Art.  III.]         Antenuptial  Agreements.  739 

the  parol  contract  had  been  merely  followed  up  by  mar- 
riage ;  and  this  was  the  ground  upon  which  the  two  cases 
mentioned  were  distinguishable  from  each  other. 

§  751.  But,  in  Maunselly.  WJiite,  4  House  of  Lords  Cases, 
1039,  A.  D.  1854,  (/)  their  Lordships, apparently  pressed  by 
the  conclusions,  which,  notwithstanding  the  disclaimers 
already  mentioned,  counsel  drew  from  some  of  the  reason- 
ing in  Hammer sley  v.  De  Biel,  distinctly  asserted  that,  in 
that  case,  the  decision  proceeded  upon  the  ground  that  the 
memorandum  was  a  contract.  Here  it  was  held,  affirming 
the  decree  of  Sir  Edward  Sugden,  as  Chancellor  of  Ireland, 
that  a  letter  to  an  intended  husband,  written  by  his  uncle, 
in  answer  to  an  application  of  the  guardians  of  the  intended 
wife  for  a  settlement ;  in  which  the  micle  stated  that  he  had 
made  his  will,  leaving  to  the  nephew  certain  estates  therein 
mentioned ;  was  not,  under  all  the  circumstances,  a  repre- 
sentation, or  an  agreement,  which  entitled  the  nephew,  after 
the  uncle' s  death,  to  maintain  a  suit  in  equity,  to  have  the 
estates  conveyed  to  the  uses  of  the  marriage.  It  appeared 
that  the  guardians  did  not  consider  the  letter  as  satisfac- 
tory ;  and  that  in  answer  to  a  communication  from  them 
to  that  effect,  the  uncle  had  written  again  to  the  nephew, 
in  such  terms  as  to  imply  quite  clearly,  that  although  he 
had  no  expectation  of  altering  his  will,  yet  he  intended  to 
reserve  the  power  of  disposition  of  the  property  ;  and  the 
marriage  took  place  after  the  receipt  of  the  second  letter. 
The  decision  might  well  have  been  placed  upon  the  mean- 
ing of  the  letters  only  ;  but  the  doctrine  of  Hammer  sley  v. 
De  Biel  was  discussed  at  considerable  length  in  the  two 
speeches  delivered,  with  the  result  just  mentioned.  It  is 
however  quite  difficult  to  reconcile  what  fell  from  Lord 
St.  Leonards,  in  this  case,  with  some  of  his  remarks  in  the 
case  immediately  succeeding  \i.{g) 

(/)  S.  C,  in  the  court  below,  7  Irish  Equity  Reports,  413 ;  and  1  Jones 
and  La  Touche,  539,  A.  D.  1844. 

{(j)  Lord  Cranworth,  who  had  succeeded  Lord  Cottenham  as  chancellor 
after  discussing  the  facts,  for  the  purpose  of  showing  th^  the  uncle  never 
intended  to  fetter  himself  absolutely,  and  that  the  other  parties  had  no  right 


740  Antenuptial  Agreements.  [Ch.  xx. 

§  752.  This  was  Jorden  v.  Money ^  5  House  of  Lords 
Cases,  185,  A.  D.  1854.  (7i)    The  bill  was  filed  by  WiUiam 

to  assume  otherwise,  said:  "In  Hammersley  v.  De  Biel,  it  was  successfully 
insisted  tliat  there  was  a  contract  to  leave  a  sum  of  money ;  "  but  here  the 
counsel  for  the  appellant  had  treated  the  rule  of  law  affecting  representations, 
as  being  distinct  from  the  rule  of  law  which  affects  contracts,  although  he 
said  that  a  representation  acted  upon  was  binding  as  a  contract.  But  his 
Lordship  said  that,  if  the  party  had  made  no  contract,  there  was  nothing  that 
he  was  bound  to  fulfil.  If  the  representation  was  of  an  existing  fact,  equity 
will  bind  him,  treating  it  as  a  contract,  when  it  was  made  with  a  A'iew  to 
induce  others  to  act  upon  it,  and  they  had  done  so.  "  There  is,''  said  his  lord- 
ship, "  no  middle  term,  no  tertium  quid,  between  a  representation  so  made,  to 
be  effective  for  such  a  purpose,  and  being  effective  for  it,  and  a  cori tract;  they 
are  identical.  That  which  leads  to  the  representation  being  made  and  acted 
on  determines  its  nature,  gives  it  the  character  of  a  contract,  or  leaves  it  a 
mere  representation."  And  his  Lordship  added  that  he  did  not  regard  the 
word  "  representation  "  as  very  happily  employed  in  the  speech  of  Lord'Cot- 
tenham.  delivered  in  Hammersley  v.  De  Biel ;  that  the  only  distinction 
which  he  understood  was  that  some  words,  which  do  not  amount  to  a  con- 
tract in  one  transaction,  may  possibly  be  held  to  do  so  in  another;  and  that 
in  Hammersley  v.  De  Biel  the  circumstances  gave  the  words  the  character  of 
a  contract.  Lord  St.  Leonards,  whose  judgment  was  then  under  review, 
spoke  substantially  to  the  same  effect.  He  said  that  "a  representation, 
which  is  made  as  an  inducement  for  another  to  act  upon  it,  and  is  followed 
by  his  acting  upon  it,  will,  especially  in  such  a  case  as  marriage,  be  deemed 
to  be  a  contract;"  and  that  in  Hammersley  v.  De  Biel  there  was  not 
merely  a  representation  of  what  was  probable  to  occur;  but  on  one  part 
a  proposal,  accompanied  with  a  condition  required  of  the  other  party; 
and  that  the  proposal  was  accepted,  the  condition  complied  with,  and 
there  were  therefore  all  the  requisites  of  a  binding  contract.  "If,"  con- 
tinued his  Lordship,  "a  man  makes  a  proposal  in  that  manner,  and  it  is 
accepted,  and  is  followed  by  a  marriage,  though  the  affair  may  have  begun 
by  being  a  proposal,  it  has  ended  by  becoming  a  contract  that  was  binding 
on  all  the  parties  concerned."  But  in  this  case,  his  Lordship  said  that  there 
was  a  simple  representation  by  the  uncle ;  and  no  doubt  it  was  a  true  state- 
ment of  what  he  had  done  and  what  he  intended.  Doubtless  also  the  par- 
ties acted  upon  it,  but  not  as  an  engagement,  which  could  not  be  revoked ; 
only  as  a  "  statement  made  by  a  relation,  whose  affection,  if  it  remained  what 
it  then  was,  would  give  the  nephew  the  property,  in  accordance  with  that 
statement."  His  Lordship  then  said  that  upon  the  theory  of  the  appellant, 
the  uncle  biecame  a  mere  tenant  for  life,  without  the  powers  of  a  tenant  for 
life  over  his  own  estate;  and  that  all  the  circumstances  showed  that  he  never 

(h)  S.  C,  23  Law  Journal,  N.  S.,  Chancery,  865. 


Art.  III.]         Antenuptial  Agreements.  741 

Money  against  Mr.  and  Mrs.  Jorden  and  other  parties, 
praying  that  a  debt  of  1,200^.,  secured  by  a  bond  and  a 
warrant  of  attorney  given  by  the  plaintiff  to  Charles  Mar- 
nell,  upon  which  a  judgment  had  been  entered  up,  might 
be  declared  to  have  been  abandoned,  and  satisfaction 
entered  up,  etc.  The  material  facts  upon  which  this  ques- 
tion arose  were  as  follows.  (?')  Mrs.  Jorden,  who  married 
quite  late  in  life,  was  a"  sister  of  Charles  Marnell,  and  she  and 
her  brothers  were  from  youth  on  very  intimate  terms  with 
the  plaintiflf's  father,  George  Money,  from  whom  they  had 
received  many  substantial  benefits.  This  intimacy  after- 
ward extended  itself  to  the  plaintiflf,  who  was  much  Miss 
Marnell' s  junior,  and  whom  she  treated  with  great  affection. 
In  1841,  the  plaintiff,  then  a  very  young  man,  became  in- 
debted to  Charles  Marnell  in  this  sum  of  1,200Z.,  under  cir- 
cumstances quite  discreditable  to  the  latter ;  and  in  1843, 
Charles  MarneU  died,  having  by  his  will  left  all  his  prop- 
erty to  Mrs.  Jorden,  then  Louisa  Marnell.  She  was  ac- 
quainted with  all  the  circumstances  under  which  the  bond 
and  warrant  of  attorney  were  given,  and  had  frequently  ex- 
pressed her  strong  disapprobation  of  her  brother  s  conduct 
in  that  matter ;  and  after  the  latter' s  death,  she  often  de- 
clared to  the  plaintiff  and  others,  that  she  had  abandoned 
and  never  intended  to  enforce  the  debt  against  the  plaintiff. 
This  statement  was  repeated  by  her  in  various  forms,  and 
always  in  very  emphatic  language. 

§  753.  In  1844,  the  plaintiff  became  engaged  to  be  mar- 
ried to  Miss  Poore  ;  and  he  informed  her  and  her  mother, 
Lady  Poore,  of  the  circumstances  under  which  he  con- 
tracted the  debt  of  1,200Z.,  and  of  Miss  Marnell' s  declara- 
tions with  respect  thereto.  It  was  considered  necessary  by 
both  families,  with  a  view  to  the  solemnization  of  the  mar- 
intended  to  place  himself  in  that  position,  nor  did  the  parties  understand  that 
he  had  done  so.  Lord  St.  Leonards  had  previously  criticised  the  decision  in 
Hammersley  v.  De  Biel,  much  to  the  same  effect,  in  his  treatise  on  the  Law 
of  Property,  etc.,  pages  53  to  56. 

(i)  Another  question  which  arose  in  this  cause  has  been  stated,  ante,  §  704. 


742  Antenuptial  Agkeements.  [Ch.  xx. 

riage,  and  the  execution  of  a  proper  settlement  thereon, 
that  the  plaintiff  should  be  secured  against  any  future 
demand  for  the  payment  of  the  1,200?.;  and,  with  that 
view,  various  conversations  took  place  between  Miss  Mar- 
nell  and  the  father  and  mother  of  the  plaintiff.  In  these 
conversations,  the  intended  marriage  was  referred  to,  and 
she  reiterated  her  assurances,  in  various  forms,  that  she 
would  never  use  the  papers  against  the  plaintiff,  and  he 
should  never  be  called  upon  to  pay  any  thing  upon  the 
debt.  In  answer  to  applications  to  surrender  the  bond  and 
warrant  of  attorney,  she  said  that  she  must  be  trusted ; 
that  she  wanted  to  keep  the  papers  to  use  them  against  one 
Hooper,  (who  was  also  liable  for  the  1,200Z.,  but  probably 
not  jointly) ;  that  she  had  made  her  will,  leaving  every  thing 
to  the  plaintiff ;  and  when  she  died,  he  might  burn  them. 
Upon  the  faith  of  these  statements,  communicated  to  Lady 
Poore,  the  latter  settled  upon  the  plaintiff  the  first  life 
interest  in  her  daughter' s  property,  and  the  marriage  took 
place  in  August  1845.  Two  or  three  years  afterwards  Miss 
Marnell  married  Mr.  Jorden ;  and  in  1849  the  plaintiff 
was  called  upon  to  pay  the  debt ;  whereupon  this  bill  was 
filed.(y) 

§  754.  The  Master  of  the  Rolls,  (Sir  John  Romilly, )  granted 
a  perpetual  injunction. (^)  From  this  decree  the  defend- 
ants appealed;  and  the  Lords  Justices  being  divided  in 


(/)  There  was  a  preliminary  motion  in  the  cause,  from  the  report  of  which 
some  additional  facts  may  be  collected.  20  Law  Journal,  N.  S.,  Chancery, 
174;  13  Beavan,  229. 

(k)  Money  v.  Jorden,  21  Law  Journal,  N.  S.,  Chancery,  531 ;  15  Beavan,  372, 
A.  D.  1852.  Sir  John  Romilly  placed  his  decision  in  the  Rolls  Court,  upon  the 
ground  that  Miss  Marnell's  declarations  that  she  would  never  enforce  the  bond, 
were  made. for  the  purpose  of  being  communicated  to  the  plaintiff,  and  to 
Lady  Poore,  and  the  other  friends  of  Miss  Poore,  previously  to  the  marriage; 
that  they  were  so  communicated;  and  that  the  marriage  took  place  and  the 
settlement  was  made  upon  the  faith  thereof  This,  he  thought,  was  sufficient 
to  entitle  the  plaintiff  to  relief,  upon  the  principles  whereby  persons  are 
required  in  equity  to  make  good  their  representations;  and  he  therefore 
forobore  from  expressing  any  opinion  as  to  the  other  points  in  the  case. 


Art.  III.]         Antenuptial  Agkeements.  743 

opinion,  (Sir  J.  L.  Knight  Bruce  for  affirmance,  and  Lord 
Cranworth  for  reversal),  the  decree  was  affirmed,  (l)  An 
appeal  was  again  taken  by  the  defendants  to  tlie  House  of 
Lords,  wliere  Lord  Cranworth,  who  had  been  made  chan- 
cellor since  the  decision  in  the  court  below,  united  with 
Lord  Brougham,  in  reversing  the  decision,  against  the 
opinion  of  Lord  St.  Leonards.  The  speech  of  Lord  Cran- 
worth, upon  the  question  now  under  examination,  was  to 
the  effect,  that  in  order  to  raise  an  equity  upon  the  ground 
of  representations,  there  must  have  been  misrepresenta- 
tions of  existing  facts,  and  not  mere  representations  of 
intentions  ;  and  that  regarding  the  plaintiff's  right  to 
relief,  as  founded  upon  the  fact  that  he  had  contracted  his 
marriage  upon  the  faith  of  Miss  Marneir  s  representations, 
they  were  merely  representations  of  intentions,  and  could 
not  be  treated  as  creating  a  contract,  for  want  of  such  a 
writing  as  the  statute  of  frauds  requires. (m)    In  this  con- 

(l)  Money  v.  Jorden,  2  De  Gex,  Macnaghten  and  Gordon,  318;  and  21 
Law  Journal,  N.  S.,  Chancery,  893,  A.  D.  1852. 

(m)  The  following  is  that  portion  of  Lord  Cranworth's  argument,  in  which 
he  discussed  the  question  arising  under  the  statute  of  frauds.  "I  think  that 
that  doctrine  "  (that  a  person  is  bound  to  make  good  a  representation,  made 
to  influence  another's  conduct,  and  upon  which  the  latter  has  acted,)  "  does 
not  apply  to  a  case  where  the  representation  is  not  a  representation  of  a  fact, 
but  a  statement  of  something  which  the  party  intends  or  does  not  intend  to 
do.  In  the  former  case  it  is  a  contract,  in  the  latter  it  is  not.  What  is 
here  contended  for,  is  this;  that  Mrs.  Jorden,  then  Miss  Marnell,  over  and 
over  again  represented  that  she  abandoned  the  debt.  Clothe  that  in  any 
words  you  please,  it  means  no  more  than  this,  that  she  would  never  enforce 
the  debt;  she  does  not  mean  in  saying  that  she  had  abandoned  it,  to  say 
that  she  had  executed  a  release  of  the  debt,  so  as  to  preclude  her  legal  right 
to  sue.  All  that  she  could  mean  was  that  she  positively  promised  that  she 
never  would  enforce  it.  My  opinion  is  that  if  all  the  evidence  had  come  up 
to  the  mark,  which,  for  reasons  I  shall  presently  state,  I  do  not  think  it  did ; 
that  if,  upon  the  very  eve  of  the  marriage,  she  had  said,  '  William  Money,  I 
never  will  enforce  the  bond  against  you,'  that  wo'ild  not  bring  it  within 
tliese  cases.  It  might  be,  if  all  statutable  requisites,  so  far  as  there  are 
statutable  requisite.s,  had  been  complied  with,  that  it  would  have  been  a  very 
good  contract,  whereby  she  might  have  bound  herself  not  to  enforce  the 
payment.  That,  however,  is  not  the  way  in  which  it  is  put  here;  in  short, 
it  could  not  have  been,  because  it  must  have  been  a  contract  reduced  into 


744  Antenuptial  Agkeements.  [Ch.  xx. 

elusion,  Lord  Brougham  substantially  concurred,  notwith- 
standing his  former  approval  of  the  whole  of  Lord  Cotten- 
ham'  s  reasoning  in  Hammer sley  v.  De  Biel.  But  upon 
this  branch  of  the  case.  Lord  St.  Leonards  argued  at 
length,  upon  principle  and  authority,  that  Mrs.  Jorden 
was  bound  by  her  representations  of  her  intentions,  upon 
the  faith  of  which  the  marriage  was  contracted.  He  said : 
"I  think  it  is  utterly  immaterial  whether  it  is  a  misrepre- 
sentation of  a  fact,  as  it  actually  existed,  or  a  misrep- 
resentation of  an  intention  to  do  or  to  abstain  from  doing 
an  act,  which  would  lead  to  the  damage  of  the  party, 
whom  you  thereby  induced  to  deal  in  marriage,  or  in  pur- 
chase, or  in  any  thing  of  that  sort,  upon  the  faith  of  that 
representation."  And  he  concluded  his  argument  by  say- 
ing :  "Having  promised  that  she  would  not  enforce  it,  she 
is  in  my  opinion  bound  by  that  promise.  The  statute  of 
frauds  does  not  extend  to  this  case." 

§  755.  Apparently  the  decision  of  the  House  of  Lords  in 
this  case  has  not  been  regarded  by  the  profession  in  Eng- 
land, as  entirely  conclusive  upon  the  effect  of  a  represen- 
tation of  an  intention  ;  for  we  continue  to  find  the  reasoning 
of  the  majority  in  Hammer  sley  v.  De  Biel  repeated  in 
the  arguments  of  counsel,  the  judgments  of  the  courts, 

writing  and  signed;  but  that  is  not  the  way  in  which  this  case  is  put;  it  is 
put  entirely  upon  the  ground  of  representation.  Now,  my  lords,  I  think  that 
the  not  adhering  to  this  statement,  call  it  contract  or  call  it  representation, 
is  no  more  a  fraud  than  it  would  be  not  adhering  to  her  engagement,  if  she 
had  said:  'Mr.  William  Money,  you  may  marry;  do  not  be  in  fear,  you 
will  not  be  in  want;  I  promise  to  settle  10,000?.  Consols  upon  you.'  If  she 
does  not  perform  that  promise,  she  is  guilty  of  a  breach  of  a  contract,  in 
respect  of  which  she  may  be  sued,  if  it  is  put  into  a  valid  form,  but  not 
otherwise ;  so  if  she  had  said,  as  she  did,  to  William  Money,  '  I  mean  to 
give  you  every  thing  I  am  worth  in  the  world,  I  promise  to  do  so,'  her 
not  doing  so  is  no  fraud,  in  the  sense  in  which  these  cases  speak  of  fraud ; 
it  is  no  misrepresentation  of  a  fact,  which  the  party  is  afterwards  held  bound 
to  make  good  as  true.  It  seems  to  me  that  the  distinction  is  founded 
upon  perfectly  good  sense;  and  that  in  truth  in  the  case  of  what  is  some- 
thinsr  future,  there  is  no  reason  for  the  application  of  the  rule,  because  the 
parties  have  only  to  say,  '  Enter  into  a  contract,'  and  then  all  difficulty  is 
removed." 


Art.  III.]         Antenuptial  Agreements.  745 

and  the  elementary  treatises.  Indeed  it  has  been  intim- 
ated tliat  in  Jorden  v.  Money ^  the  weight  of  autliority  was 
with  the  distinguished  judges  who  were  overruled,  not- 
withstanding their  superior  number,  and  at  least  equal 
reputation,  {n)    But  the  ruling  in  that  case  was  followed  by 

(n)  Mr.  Peachey  in  his  Treatise  on  Marriage  Settlements,  page  74,  remarks 
of  this  case  :  "  It  however  detracts  somewhat  from  the  intrinsic  value  of  this, 
the  decision  of  the  Supreme  Court  of  Appeal  of  the  three  kingdoms,  that 
it  is  disapproved  of  by  three  equity  judges  of  eminence.  Lord  St 
Leonards,  the  Lord  Justice  Knight  Bruce,  and  Sir  John  Romilly." 
And  in  delivering  his  opinion  in  Pulsford  v.  Richards,-  17  Beavan,  94,  A.  D. 
1853,  Sir  John  Romilly  reiterated  his  conviction  of  the  correctness  of  hia 
conclusions  in  Jorden  v.  Money.  But  in  the  subsequent  case  of  Goldicutt  v. 
Townsend,  28  Beavan,  445,  A.  D.  1860  (§  733,  ante),  after  saying  that  he 
should  follow  the  decision  of  the  House  of  Lords  in  Jorden  v.  Money,  if  the 
case  before  him  had  called  for  the  application  of  the  principle  there  estab- 
lished, he  referred  to  Hammersley  v.  De  Biel  as  follows:  "All  which  that 
and  similar  cases  establish  is  this;  that  if,  in  consideration  of  a  promise  made 
by  the  father  of  one  of  the  parties  to  the  marriage  contract,  the  other  party 
to  it  does  an  act  previously  to  the  marriage,  which  is  binding  on  him,  the 
court  holds  that  to  be  a  good  consideration,  and  that  the  promise  may  be 
enforced."  See  also  his  observations  in  Boldr.  Hutchinson,  20  Beavan,  250, 
A.  D.  1855,  (S.  C,  1  Jurist,  N.  S.,  365;  24  Law  Journal,  N.  S.,  Chancery, 
285,)  affirmed  by  the  chancellor  on  another  ground,  5  De  Gex,  Macnaghten  and 
Gordon,  558 ;  2  Jurist,  N.  S.,  97;  and  25  Law  Journal,  Chancery,  N.  S.,  598. 
But  in  Prole  v.  Soady,  2  Giflard,  1,  A.D.  1859,  (S.  C.,29  Law  Journal,  N.S., 
Chancery,  721,  5  Jurist,  N.  S.,  1382,)  Vice  Chancellor  Sir  John  Stuart  de- 
clared unequivocally  his  approval  of  the  reasoning  of  Lord  Cottenham  in 
Hammersley  v.  De  Biel,  upon  the  effect  of  a  representation  of  an  intention. 
It  was  a  bill  by  the  children  of  a  marriage,  whose  mother  had  died,  against 
the  devisees  and  personal  representatives  of  their  maternal  grandfather,  to 
enforce  a  representation,  respecting  the  settlement  of  certain  property  upon 
the  plaintiff's  mother,  alleged  to  have  been  made  by  the  grandfather  to  the 
plaintiff's  father,  on  the  faith  of  which  the  marriage  was  contracted.  As  we 
understand  the  Vice  Chancellor,  he  concluded,  upon  the  evidence,  that  the 
representation  was  to  the  effect  that  the  property  had  actually  been  settled; 
but  he  said  several  times  in  his  opinion,  that  the  representation  of  an  intention 
to  settle  would  have  entitled  the  plaintiffs  to  relief.  Referring  to  Hammer- 
sley V.  De  Biel,  he  remarked  that  in  that  case  the  representation  was  merely 
the  expression  of  an  intention  to  leave  the  sum  of  lO.OOOZ.  by  a  revocable  in- 
strument; but  inasmuch  as  the  expression  was  an  inducement  to  the  con- 
tract, the  executors  were  compelled  to  fulfil  that  which  was  expressed  as  a 
mere  intention.  He  added :  "  This  doctrine,  which  gives  all  the  force  of  a 
94 


746  Antenuptial  Ageeements.  [Cli.  xx. 

Lord  Cranwortli,  and  apparently  also  by  the  House  of 
Lords,  in  the  next  case  when  the  question  was  presented. 

§  756.  This  was  Caton  v.  Caton,  first  heard  before  Vice 
Chancellor  Sir  John  Stuart,  A.  D.  1865 ;  whose  judgment 
in  favor  of  the  plaintiff  is  reported  in  34  Law  Journal,  New 


binding  contract,  to  the  mere  expression  of  an  intention  to  do  something 
by  an  instrument  revocable  in  its  nature,  is  too  firmly  estabhshed  to  be 
shaken."  Again  in  Loflfus  v.  Maw,  3  Giffard,  592,  A.  D.  1862  (S.  C,  6  Law 
Times,  N.  S.,  346;  32  Law  Journal,  N.  S.,  Chancery,  49;  8  Jurist,  N.  S., 
607;  10  Weekly  Reporter,  513,)  where  the  plaintiff  was  induced  to  reside 
with  her  uncle,  the  defendant's  testator,  as  his  housekeeper,  upon  his  verbal 
representation  that  he  would  leave  her  certain  property  by  his  will;  and  he 
prepared  and  executed  a  will  accordingly,  but  subsequently  revoked  it ;  Vice 
Chancellor  Stuart,  on  pronouncing  a  decree  for  the  plaintiff,  said  that  although 
the  decision  in  Jorden  v.  Money  was  no  doubt  binding,  it  could  not  be  con- 
sidered as  a  reversal  of  Hammersley  v.  De  Biel ;  and  the  proposition  attributed 
to  Lord  Cranworth,  that  a  statement  or  representation  of  what  a  person  intends 
to  do  is  not  sufficient,  seems  to  be  irreconcilable  with  the.  decision  in  the  latter 
case,  and  with  the  law  as  laid  down  by  all  judges  of  the  highest  authority. 
He  also  alluded  to  the  fact  that  Hammersley  v.  De  Biel  is  not  referred  to  in 
the  remarks  of  any  of  the  law  lords  in  Jorden  v.  Money.  In  Walford  v. 
Gray,  11  Jurist,  N.  S.,  106,  A.  D.  1865,  (S.  C,  11  Law  Times,  N.  S.,  620; 
13  Weekly  Reporter,  335 ;)  the  same  Vice  Chancellor  again  followed  Ham- 
mersley V.  De  Biel,  but  under  circumstances  where  no  question  arose  as  to 
the  effect  of  a  verbal  representation.  There,  upon  a  treaty  of  marriage,  the 
father  of  the  intended  wife  assured  the  intended  husband,  that  he  and  his 
wife  "do  not  propose  to  exercise,"  certain  powers  of  appointment  reserved 
to  them  by  their  own  marriage  settlement,  in  default  of  the  exercise  of  which, 
the  intended  wife  and  her  issue  would  be  entitled,  upon  the  decease  of  both 
her  parents,  to  one  third  of  the  property  settled.  The  wife  having  died, 
leaving  the  plaintiff  the  only  issue  of  the  marriage,  the  Vice  Chancellor  held 
that  this  was  a  "representation  "  which  entitled  the  plaintiff,  after  the  death 
of  his  grandfather  and  grandmother,  to  maintain  an  action  to  recover  the 
one  third  of  the  settled  property,  which  had  been  otherwise  disposed  of  by 
their  appointment.  But  here  there  was  a  letter  from  the  grandfather's 
solicitor,  which  sufficiently  proved  the  assurance ;  and  principally  on  that 
ground,  treating  the  transaction  throughout  as  an  "agreement,"  the  Chan- 
cellor (Lord  Westbury)  affirmed  the  Vice  Chancellor's  decree,  11  Jurist, 
•N.  S.,  473;  13  Weekly  Reporter,  761;  12  Law  Times,  N.  S.,  437.  The 
judgments  of  the  same  Vice  Chancellor  in  Caton  v.  Caton  and  Williams  v. 
Williams  are  mentioned  in  the  following  pages. 


Art.  III.]         Antenuptial  Agreements.  747 

Series,  Chancery,  564.  (o)  On  appeal  this  decree  was  reversed 
by  the  Lord  Chancellor,  Law  Reports,  1  Chancery  Appeals, 
137,  and  35  Law  Journal,  New  Series,  Chancery,  292,  A.  D. 
1806.  (j9)  And  the  latter  decree  was  aflBrmed  ujjon  an  ap- 
peal to  the  House  of  Lords,  Law  Reports,  2  House  of 
Lord,s,  127,  A.  D.  1867.  {q)  There  it  appeared  that  in  the 
year  1852,  the  Reverend  R.  B.  Caton,  a  clergyman  nearly 
eighty  years  of  age,  and  the  plaintiff,  a  widow  of  sixty, 
entered  into  a  treaty  of  marriage ;  and  it  was  arranged 
between  them  that  a  settlement  should  be  made  upon  the 
intended  marriage,  according  to  a  paper  written  out  but 
not  signed  by  Mr.  Caton.  (r)  The  substance  of  this  paper 
was  that  the  plaintiff's  fortune  should  be  settled  upon 
herself;  but  Mr.  Caton  should  have  the  income  of  it 
during  his  life,  except  80Z.  per  annum  for  pin  money  ;  that 
after  Mr.  Caton' s  death,  she  should  have  a  certain  house 
belonging  to  him  for  her  life,  and  all  his  furniture,  plate, 
etc.,  absolutely.  The  draft  of  a  settlement  was  prepared, 
according  to  the  paper ;  but  some  alterations  were  sug- 
gested by  Mr.  Caton  for  the  purpose  of  avoiding  the 
expense  of  executing  it,  which  were  assented  to  by  the 
plaintiff;  and' a  new  draft  was  prepared.  Mr.  Caton  then 
represented  to  her  that  the  engrossment  of  the  settlement 
would  occasion  great  expense,  which  he  proposed  to  save 

(o)  Also  13  Weekly  Reporter,  801;  12  Law  Times,  N.  S.,  532;  and,  (as 
part  of  the  report  of  the  case  before  the  Chancellor),  in  12  Jurist,  N.  S.,  171, 
and  Law  Reports,  1  Chancery  Appeals,  137. 

{p)  Also  12  Jurist,  N.  S.,  171;  14  Weekly  Reporter,  2G7;  and  14  Law 
Times,  N.  S.,  34. 

{q)  Also  36  Law  Journal,  New  Series,  Chancery,  86;  and  16  Weekly 
Reporter,  1. 

(/•)  Many  of  the  reports  of  the  case  in  the  courts  below  state  that  this 
memorandum  was  signed  by  Mr.  Caton,  either  with  his  full  name  or  his 
initials ;  and  some  say  that  it  was  also  signed  by  Mrs.  Caton.  But  all  these 
statements  are  manifestly  erroneous.  The  report  in  Law  Report's,  2  House 
of  Lords,  127,  expressly  says  that  it  was  not  signed  by  either ;  and  the  deci- 
sion of  the  Lords  proceeded  principally  upon  the  ground,  that  although  Mr. 
Caton's  name  and  initials,  written  by  him,  appeared  several  limes  in  the  body 
of  the  memorandum,  they  were  nowhere  used  in  such  a  manner  as  to  authen- 
ticate or  gover-a  the  whole  instrument. 


748  Antenuptial  Agkeements.  [Ch.  xx. 

altogetlier,  and,  as  she  alleged,  he  promised,  if  she  would 
forego  its  execution,  "that  he  would  most  strictly  and 
faithfully  carry  out  the  terms  of  the  marriage  contract 
agreed  upon,  and  would  leave  to  her  by  his  will  the  whole 
of  her  then  and  after  acquired  property,"  etc.,  according  to 
the  provisions  of  the  proposed  settlement.  She  consented, 
and  the  marriage  accordingly  took  place  in  1853.  Before 
the  ceremony,  Mr.  Caton  produced  a  wUl,  which  appeared 
to  be  in  conformity  with  his  promises  ;  and  he  executed  it 
in  the  vestry,  immediately  after  the  ceremony  had  been 
performed.  After  the  marriage,  he  took  possession  of  his 
wife' s  property  ;  and  allowed  her  the  80Z.  per  annum.  In 
January,  1864,  he  died,  and  it  was  then  found  that  in  May, 
1863,  he  had  executed  another  will,  without  the  plaintiff's 
knowledge,  revoking  all  prior  wills,  and  making  such  dis- 
position of  his  estate,  that  she  had  only  the  income  for  her 
life,  of  a  portion  of  the  personal  property  belonging  to  her 
at  the  time  of  her  marriage  ;  and  the  remainder,  together 
with  the  principal  of  that  part,  to  the  income  of  which  she 
was  entitled  by  the  will,  was  left  to  the  defendants,  his 
sons  by  a  former  marriage,  who  were  also  made  his  gen- 
eral devisees  and  legatees.  Mrs.  Caton  thereupon  filed 
this  bill  to  enforce  the  agreement ;  and  the  defendants 
having  denied  the  agreement,  and  pleaded  the  statute  of 
frauds,  the  cause  came  on  for  hearing  before  Vice  Chan- 
cellor Stuart,  who  made  a  decree  in  her  favor,  {s) 

§  757.  The  defendants  appealed  from  the  Vice  Chancel- 
lor' s  decree  to  the  Chancellor,  (Lord  Cranworth),  who  re- 

(s)  His  Honor  said  that  the  memorandum  was  not  the  agreement  which 
the  plaintiff  asked  to  have  performed,  but  the  reUef  sought  was  substan- 
tially the  same  as  the  specific  performance  of  that  agreement;  the  only  dif- 
erence  between  the  two  being  the  machinery  and  mode  by  which  the 
plaintiff's  fortune  was  to  be  secured  to  her.  And  upon  the  question,  relating 
to  the  application  of  the  statute  of  frauds,  he  thought  that  the  decisions, 
holding  that  part  performance  of  a  verbal  contract  for  the  sale  of  land  would 
take  it  out  of  the  statute,  were  applicable  to  this  case.  That  here  there  was 
evidence  in  writing  ;  a  will  was  executed;  this  was  more  than  part  perform- 
ance, it  was  performance ;  and  all  that  was  necessary  was  that  the  will 
should  remain  unaltered. 


Art.  III.]         Antenuptial  Agreements.  749 

versed  it.  In  delivering  his  judgment,  he  said  that  (courts 
of  equity  were  as  much  bound  by  the  statute  of  frauds  as 
courts  of  law,  "unless  there  be  equitable  grounds  for  tak- 
ing a  case  out  of  the  operation  of  the  statute  ;' '  that  this 
was  not  denied  by  the  plaintiff ;  but  her  counsel  insisted 
that  there  were  equitable  grounds  for  relief,  notwitlistand- 
ing  the  statute  ;  and  this  was  the  ground  upon  which  the 
Vice  Chancellor  proceeded.  "That  marriage  itself,"  con- 
tinued his  Lordship,  "is  no  part  performance  within  the 
rule  of  equity,  is  certain.  Marriage  is  necessary  in  order 
to  bring  a  case  within  the  statute  ;  and  to  hold  that  it  also 
takes  a  case  without  the  statute,  would  be  a  palpable 
absurdity. ' '  And  his  Lordship  thought  that  the  additional 
ground  upon  wMch  the  Vice  Chancellor  rested  his  judg- 
ment ;  namely,  that  a  will  had  been  prepared  previously  to 
the  marriage,  and  executed  afterwards,  in  conformity  with 
the  verbal  agreement,  did  not  bring  the  case  within  the 
equitable  rule  respecting  part  performance.  For  that  rule 
requires  that  one  of  the  parties  should  have  been  induced 
or  allowed  by  the  other,  to  alter  his  position,  upon  the  faith 
of  the  contract ;  so  that  it  would  be  a  fraud  in  the  other 
party  to  set  up  its  legal  invalidity.  But  here  the  prepara- 
tion and  execution  of  the  will  caused  no  alteration  in  the 
plaintiff' s  position  ;  and  no  consequence  can  be  attributed 
to  acts  of  part  performance  by  the  party  sought  to  be 
charged.  The  circumstances  relied  upon  might  afford 
strong  evidence  of  the  existence  of  the  parol  contract 
insisted  on,  if  that  was  a  matter  into  which  the  court  was 
at  liberty  to  inquire ;  but  it  could  not  have  the  effect  to 
give  legal  validity  to  a  contract  otherwise  invalid.  And 
the  nature  of  the  alleged  agreement  was  such,  as  hardly 
to  admit  of  part  performance,  even  by  the  party  to  be 
charged ;  for,  as  a  will  is  always  revocable,  a  contract 
to  make  a  bequest,  even  when  a  will  has  been  prepared 
and  executed  accordingly,  is  a  contract  of  a  negative 
nature,  a  contract  not  to  vary  it.  And  his  Lordship 
thought  that  there  could  be  no  part  performance  of  a  con- 
tract of  that  character. 


750  Antenuptial  Agreements.  [Ch.  xx. 

§  758.  Upon  the  argument  of  the  appeal  from  this  decree 
to  the  House  of  Lords,  the  plaintiff' s  counsel  abandoned 
the  point  that  there  had  been  such  part  performance  of  the 
verbal  agreement,  as  would  take  it  out  of  the  statute  ;  and 
they  insisted  that,  although  the  execution  of  a  settlement 
had  been  abandoned  by  consent,  the  original  agreement 
had  never  been  abandoned,  and  they  had  a  right  to  rely 
upon  that.  This  agreement,  it  was  argued,  was  evidenced 
by  the  memorandum,  which  was  sufficiently  signed  to  sat- 
isfy the  statute.  And  the  outline  of  the  argument  in  the 
Law  Reports  indicates  that  they  also  suggested  that  she 
was  entitled  to  relief,  in  consequence  of  having  married  in 
reliance  upon  the  defendant' s  representation ;  within  the 
reasoning  of  Lord  Cottenham,  in  Hammer sley  v.  De  Biel. 
But,  apparently,  this  point  was  not  much  pressed ;  and  the 
court  disregarded  it  altogether.  In  the  speeches  delivered 
by  the  law  lords,  the  discussion  was  confined  to  the  other 
points  ;  and,  with  the  exception  of  a  general  approval  of 
the  judgment  of  the  Chancellor  by  Lord  Chelmsford,  (his 
successor),  and  by  Lord  Westbury,  and  a  remark  of  Lord 
Cranworth,  to  the  effect  that  nothing  had  occurred  to  change 
the  opinion  expressed  by  him  in  the  court  below,  they 
contain  no  reference  to  the  question  now  under  exam- 
ination. 

§  759.  But  Vice  Chancellor  Sir  John  Stuart,  in  the  latest 
case  of  this  series,  Williams  v.  Williams,  37  Law  Journal, 
ISTew  Series,  Chancery  854,  A.  D.  1868,  (^)  again  went  back 
to  Lord  Cottenham' s  doctrine  respecting  a  representation. 
This  was  an  appeal  from  the  decision  of  the  judge  of  a 
county  court,  made  upon  the  accounting  of  the  executors 
of  the  will  of  one  Evan  Williams.  Richard  Williams,  one 
of  the  executors,  and  a  son  of  the  testator,  claimed  to  retain 
150Z.,  part  of  a  sum  of  200?.,  as  the  balance  of  his  marriage 
portion.  It  appeared  that  the  testator  previously  to  and 
in  consideration  of  the  marriage  of  Richard,  had  verbally 
promised  him  the  portion  of  200Z.,  and  had  also  verbally 

(<)  S.  C,  18  Law  Times,  N.  S.,  785. 


Art.  III.]         Antenuptial  Agreements.  761 

communicated  that  promise  to  the  father  of  the  intended 
wife;  who  "thereupon  and  in  consideration  thereof,  and 
before  the  marriage,  verbally  promised  to  and  agreed  with 
the  testator ' '  to  give  his  daughter  a  like  marriage  portion 
of  2001.]  that  the  father-in-law  of  Richard  had  since  the 
marriage  paid  the  2001.,  and  the  testator  had  also  paid 
501.',  but  had  died,  leaving  the  remainder  unpaid.  The 
judge  of  the  county  court  decided  that  the  executor  was 
entitled  to  retain  the  1501.,  basing  his  decision  on  the  exist- 
ence of  an  agreement  between  the  testator  and  the  father- 
in-law,  and  the  part  performance  of  that  agreement  by 
each  party  thereto. 

§  760.  This  decision  was  affirmed  by  the  Vice  Chancel- 
lor. He  said  that  the  true  doctrine  in  this  class  of  cases 
was  laid  down  by  Lord  Cottenham  and  by  the  House 
of  Lords  through  Lord  Brougham  and  Lord  Campbell, 
in  Hammer sley  v.  De  Biel,  to  the  effect  that  "a  rep- 
resentation made  by  one  party  for  the  purpose  of  influenc- 
ing the  conduct  of  the  other,  and  acted  on  by  him,  will  in 
general  be  sufficient  to  entitle  him  to  the  assistance  of  this 
court  for  the  purpose  of  realizing  such  representation." 
That  in  Jorden  v.  Money  this  principle  was  not  adhered 
to,  and  in  Gaton  v.  Caton  it  was  violated :  the  last  men- 
tioned decision  having  been,  his  Honor  thought,  made  "in 
consequence  of  the  extraordinary  and  peculiar  circum- 
stances of  the  case  itself,  and  in  obedience  to  the  view 
entertained  by  Lord  Cranworth  with  respect  to  it."  That 
view,  his  Honor  thought,  was  in  opposition  to  the  princi- 
ples established  in  Hammer  sley  v.  Be  Biel ;  but  that  case 
has  since  been  followed  by  other  cases  in  this  court.  (2^) 
He  must  therefore  consider  the  authority  of  it  as  estab- 
lished on  impregnable  grounds.  Then,  after  saying  that 
the  evidence  must  be  very  clear,  and  commenting  upon  a 
case  formerly  decided  by  him  upon  grounds  inapplicable 

(w)  These  cases  are  not  cited,  and  wo  are  at  a  loss  to  know  whether  his 
Honor  referred  to  his  own  decisions,  cited  in  the  note  to  §  755,  or  to  some 
other  cases  which  have  escaped  our  notice. 


752  Antenuptial  Agkeements.  [Ch.  xx. 

to  this  case,  he  said  that  here  the  representation  was  made 
to  the  husband,  and  the  evidence  was  clear.  He  then  pro- 
ceeded :  "Now  then,  there  is  certainty  as  to  the  nature  of 
the  representation,  certainty  as  to  the  amount,  and  a  mar- 
riage contract  on  the  faith  of  the  representation.  After 
that  the  marriage  portion  is  paid  by  the  father-in-law,  and 
it  is  sworn  to  have  been  paid  in  performance  of  the  repre- 
sentation. The  case  is  therefore  within  the  principle  laid 
down  in  Hammer sley  v.  De  Biel. ' '  The  opinion  concluded 
as  follows:  "I  have  not  entered  into  the  considerations 
arising  out  of  the  fact  of  the  contract  in  this  case  being  a 
verbal  one,  because,  in  my  opinion,  the  part  performance 
of  this  contract  takes  it  out  of  the  statute  of  frauds.  That 
was  settled  by  the  decision  of  the  House  of  Lords  in  Caton 
V.  Caton,''''  (sic),  "although  the  part  performance  in  that  case 
was  the  act  of  the  testator,  by  which  he  did  by  a  revocable 
instrument,  what  he  had  promised  to  do  by  an  instrument 
wholly  irrevocable.  Different  minds  take  different  views  •, 
but  I  adhere  to  the  clear  definitions  of  the  law  upon  the 
subject  given  by  Lord  Cottenham,  Lord  Brougham  and 
Lord  Campbell." 

§  761.  The  decision  in  this  case  may  possibly  be  upheld 
upon  principles  which  were  not  adverted  to  by  the  Vice 
Chancellor ;  but  with  respect  to  the  question  now  under 
discussion,  we  think  that  his  adherence  to  the  dicta  in 
Hammer  sley  v.  De  Biel,  after  the  repeated  condemnation 
by  the  appellate  courts  of  the  doctrine  which  they  uphold, 
will  not  command  the  approval  of  the  profession.  The 
course  of  Sir  John  Romilly,  in  frankly  abandoning  the 
views  expressed  by  him  in  Money  v.  Jorden,  after  the 
Chancellor  and  the  House  of  Lords  had  reversed  his  judg- 
ment, is  much  more  in  accordance  with  that  deference  due 
from  an  inferior  tribunal,  however  eminent,  to  the  rulings 
of  its  oflacial  superior,  without  which  there  can  be  no  cer- 
tainty in  the  administration  of  justice.  We  therefore  con- 
clude that  the  correct  doctrine,  upon  reason  and  principle, 
as  well  as  the  authority  of  the  decisions  collated  in  this 
article,  is  that  a  representation  of  an  intention  to  do  an  act 


Art.  III.]         Antenuptial  Ageeements.  753 

at  a  future  day,  if  it  can  be  distinguished  from  a  contract, 
does  not,  in  the  absence  of  actual  fraud,  entitle  the  party 
to  whom  it  was  made,  to  maintain  an  equitable  action  for 
specific  performance  ;  although  it  was  made  for  the  pur- 
pose of  so  being  acted  upon  by  him  ;  and  although  it  has 
so  influenced  his  conduct  that  a  restoration  to  his  former 
condition  would  be  impossible.  On  the  contrary,  in  order 
to  enable  such  an  action  to  be  maintained,  the  representa- 
tion must  have  been,  in  legal  eflect,  a  contract,  and  the 
plaintiff  must  found  his  action  upon  it  as  a  contract.  But 
when  the  contract  was  made  in  consideration  of  marriage, 
the  statute  prevents  the  courts  from  granting  any  relief, 
founded  upon  the  performance  of  that  consideration.  Con- 
sequently a  representation  of  an  intention,  made  for  the 
purpose  of  inducing  a  marriage,  will  not  sustain  a  bill  for 
specific  performance,  unless  the  evidence  thereof  is  con- 
tained in  a  writing  sufficient  to  satisfy  the  requirements 
of  the  statute  of  frauds ;  or  unless  the  plaintiff,  or  the 
person  through  whom  he  derives  liis  right  of  action,  has, 
in  addition  to  the  celebration  of  the  marriage,  done  some 
distinct  act,  sufficient  of  itself  to  entitle  him  to  relief ;  his 
performance  of  which  was  contemplated  by  the  express 
terms  of  the  representation  itself,  or  by  necessary  implica- 
tion therefrom. 


95 


INDEX. 


A. 

ABANDONMENT:  Sceiion. 

of  a  subsisting  contract,  as  a  ground  for  taking  out  of  the  statute  a 

stranger's  promise  to  pay  for  the  same  service,  &c., 294-320 

See  Discharge  op  Thibd  Person,  IV. 

ACCEPTANCE  AND  ACCEPTOIt: 

See  Bill  of  Exchange. 

ACKNOWLEDGMENT : 

to  lake  out  of  the  statute  of  limitations,  not  within  the  statute  of 
frauds, 497,  and  note. 

ADMINISTRATOR: 

See  EXECtTDORS  and  ADillNISTRATORS. 

ADMISSION: 

by  promise,  that  promisor  or  his  property  was  originally  liable,  estops 
promisor  from  showing  that  it  was  collateral, 485-489 

ADPROMISSIO  AND  ADPROMISSOR: 

defined, 329 

AGREEMENTS,  VERBAL: 

See  Statute  of  Frauds  ;  Executors  and  Administrators  ;  Collateral 
Undertakings;  Marriage  Agreements. 

ALTERATION  OF  FORM : 

of  existing  liability  for  third  person's  debt, 490-496 

Sec  Former  Liability,  III. 

AMBIGUITY : 

in  the  words  of  the  promise, 188,  298 

And  see  Lla^ility  of  Third  Person,  III. 

"ANOTHER  PERSON : " 

semblc  that  these  words  are  satisfied,  only  when  they  apply  to  a  per- 
son in  existence,  and  specifically  designated, 358  359,  CG8 


756  INDEX. 

"ANOTHER  'PERSO'!>i"  —  {Continued.)  Section, 

whether  a  factor's  engagement  under  a  del  credere  commission 

satisfies  them, 358,  649,  668 

whether  they  are  satisfied  by  a  promise  to  pay  a  deceased  per- 
son's debt,  made  before  probate  or  grant  of  administration,  15  Twte, 

16,  359 

but  a  corporation  is  within  them, 360 

statute  not  applicable  merely  because  another  is  also  liable,  ....  484,  581 
statute  inapplicable  to  promise  to  answer  for  promisor's  own  debt, 

whatever  its  form, 214,  480,  484,  615,  617,  650 

These  words  are  not  satisfied  unless  the  promisee  luns  the  person  to 
whom  the  debt  or  duty  was  to  he  discharged  (Collateral  Undertakings, 

fifth  rule), 361-478 

origin  of  the  rule, 363 

its  effect  the  same  as  if  the  words  were  *'  a  third  person," 363 

how  the  rule  is  reconciled  with  the  language  actually  used, 364 

I.  General  application  of  the  rule : 

1.  Rule  laid  down  by  Lord  Denman  in  Eastwood  v.  Kenyon,  . . .  365 

2.  Not  confined  to  cases  where  promise  made  to  debtor, 866 

3.  Illustrations  of  the  general  principle, 366-382 

4.  The  principle  rests  upon  inconclusive  reasoning,  but  it  is  well 

settled, 383,  384 

II.  Where  a  creditor  seeks  to  enforce  the  defendant's  verbal  contract 

to  pay  the  debt,  made  with  the  debtor, 385-426 

1.  The  question  stated, 385 

2.  In  England  a  stranger  to  the  consideration  cannot  enforce 

a  contract, 386,  and  note 

3.  The  weight  of  authority,  in  the  United  States,  is  the  other 

way,  id. ;  and  see  6,  post. 

4.  Reasons  for  sustaining  the  action  in  the  United  States,  stated 

and  discussed,  with  reference  to  the  question  whether  the 
statute  applies, 387-395 

5.  "When  creditor  not  a  party  to  the  contract,  application  of 

the  statute  not  dependent  on  same  principle  as  when  he 
■    was,  395,  396.    And  see  Fund,  VII. 

6.  American  cases,  where  the  creditor  was  not  a  party,  examined 

with  reference  to  the  application  of  the  statute ;  and  inci- 
dentally to  the  common  law  rule ;  the  right  of  the  debtor  to 

release  the  contract ;  and  other  questions  arising, 397-426 

rulings  in  various  states  that  the  statute  does  not  apply, . .  397^17 
rulings  in  other  states  that  the  statute  does  apply, 418-426 

III.  Indemnity  against  a  liability  to  be  thereafter  incurred  by  prom- 

isee, not  within  the  statute,  where  no  one  except  the  promisor 

was  primarily  bound  to  indemnify  him, 428-437 

cases  illustrating  this  proposition, 429-436 

but  indemnity  must  be  confined  to  the  liability  so  to  be  incurred,  437 

IV.  Whether  an  indemnity  against  a  liability  to  be  incurred   as 

security  for  a  third  person,  is  within  the  statute, 438-477 


INDEX.  757 

"ANOTHER  PERSON"  — (Ct^Hfmwfrf.)  Section. 

1.  Statement  of  the  question ;  arguments  on  both  sides, 438-440 

2.  Fhictuations  of  opinion  in  the  English  courts, 440-448 

3.  But  parties  to  a  bill  of  exchange,  &c.,  may  vary  their  apparent 

liabilities  to  each  other  by  verbal  agreement, 445,  446 

4.  In  England,  indemnity  for  becoming  bail  for  a  third  person,  in 

a  criminal  proceeding,  is  not  within  the  statute, 447,  448 

whether  the  defendant  in  a  criminal  proceeding  is  liable  to 
his  bail,  upon  default,  &c., 448, 7ioto 

5.  Fluctuations  of  oi)inion  in  the  New  York  courts  upon  the 

principal  question, 449-455 

6.  But  when  promisor  and  promisee  are  sureties  on  same  instru- 

ment, the  indemnity  is  not  within  the  statute, 453,  454 

7.  The  course  of  decision  in  Massachusetts  upon  the  principal 

question, 456,  457 

8.  Rulings  in  some  other  states  that  statute  does  not  apply,.  458-467 

9.  Contrary  rulings  elsewhere, 408-472 

10.  Where  it  does  not  distinctly  appear  that  any  person  except 

the  promisee  was  primarily  liable, 473 

11.  Summing  up  of  on  both  sides  of  the  question, 474^477 

"ANSWER:" 

meaning  of  this  word  in  the  first  clause  of  the  fourth  section, 83,  36 

its  meaning  and  effect  in  the  second  clause, 112 

See  Guaranty  by  Indirection. 

ANTENUPTIAL  AGREEMENTS : 

See  Marriage  Agreements. 

ARBITRATION: 

verbal  agreements  for,  valid, 6 

submission  to,  by  executor^  &c.,  not  within  statute, 36,  and  note 

not  an  admission  of  assets, id. 

ASSENT : 

distinction  between,  and  request, 163,  439,  400,  461 

ASSETS: 

See  Executors  and  Administrators. 

ASSIGNMENT  AND  ASSIGNEE: 

when  debtor's  promise  to  pay  his  debt  to  an  assignee  is  valid  at  com- 
mon law  or  under  the  statute.    See  Former  Liability,  V. 
assignee  for  benefit  of  creditors,  his  duty  or  implied  promise  not 

within  statute, 101  note,  531,  533 

guaranty  given  upon  assigning  a  chose  in  action  by  guarantor  to 
guarantee,  not  within  statute.    See  Guaranty,  I. 
FcT  other  questions,  see  Transfer. 


768  INDEX. 

ATTACHMENT :  Section, 

forbearing  to  issue,  will  not  take  out  of  statute  promise  to  pay  debt,    58 
release  of  levy,  as  a  ground  for  taking  case  out  of  statute.     See  Lien. 

ATTORNEY : 

promise  to  pay  his  costs,  &c.,  when  within  the  statute, 137,  398,  588 


B. 

BAIL: 

promise  to  execute  bail  bond  for  another  not  within  statute, 113 

whether  promise  to  indemnify  the  prorhisee  for  executing  a  baU  bond 

is  within  the  statute.    See  Another  Person,  IV. 
whether  defendant  in  a  criminal  proceeding  bound  to  indemnify  his 

bail 448,no«<J 

BANKRUPTCY : 

renewal  of  liability  for  another's  debt,  barred  by  certificate  in  bank- 
ruptcy, not  within  the  statute, 497 

aliter  by  Lord  Tenterden's  act  and  corresponding  American  sta  •- 
utes, 105,  and  note 

BILL  OF  EXCHANGE : 

liabilities  regulated  by  the  mercantile  law  are  not  within  the  statute 
of  frauds, 86,  87 

verbal  promise  to  accept  a  bill  of  exchange  sufficient,  and  not  within 
the  statute, .' 86,  206 

whether  verbal  promise  to  accept  non-existing  bill  is  sufficient, 206 

as  between  the  parties,  it  may  be  shown  that  one  verbally  indemni- 
fied the  other, 445,  446 

whether  a  waiver  of  a  technical  discharge  .by  the  drawer  or  indorser 
is  within  the  statute.    See  Former  Liability,  IV. 

promise  to  accept  or  indorse  bill  of  exchange  to  be  given  by  third 
person  to  promisee.    See  CoNDiTiONAii  Promise,  IV. 

BOND: 

executor's,  to  pay  debts,  etc.,  conclusive  evidence  of  assets,. .  26,  37,  note 

BOOKS : 

whether  promisee's  books  evidence  in  his  favor,  upon  the  question 

whether  the  promise  was  original  or  collateral, J  89-193 

See  Liability  of  Third  Person,  IV. 
admissibility,  generally,  of  the  plaintiff's  books,  by  local  statutes  or 
regulations, 192,  JwU 

BREACH  OF  PROMISE: 

action  for,  not  affected  by  statute  of  frauds, , . , , , 699-701 


INDEX.  759 

C. 

CAPIAS  AD   SATISFACIENDUM :  Sectiou. 

discharge  from  arrest  under,  will  take  out  of  the  statute  a  stranger's 

promise  to  pay  the  debt, 278-284 

See  Discharge  op  Third  Person,  III,  1. 

CHANGE  OF  FORM : 

of  a  pre-existing  liability  of  the  promisor  for  the  debt  of  a  third 
person.    See  Former  Liability. 

CIRCUITY : 

whether  the  circuity  of  the  process,  whereby  a  person  is  made  an- 
swerable for  the  debt  of  another,  affects  the  application  of  the 
statute.    See  Guarajmty  by  Indirection. 

CLASSIFICATION : 

Classification  of  cases,  where  verbal  agreements  are  valid,  althongh  they 
are  apparently  or  actually  witJiin  the  terms  of  the  provision  relating 

to  collateral  vndertakings, 61-72 

difficulties  in  the  way  of  a  correct  classification, 61 

never  attempted  in  England, 62 

Chief  Justice  Kent's  classification  in  Leonard  v.  Vredenburgh, 63 

Chief  Justice  Comstock's,  in  Mallory  v.  Gillett, 64 

merits  and  defects  of  these  two  systems, 65,  66 

Chief  Justice  Bell's  classification  in  Robinson  v.  Gilman, 65,  note 

general  principles  upon  which  the  classification  adopted  in  this  work 

is  based, 67,  68 

not  always  sustained  by  the  cases, 92,  93 

details  of  the  plan  adopted, 69-72 

COLLATERAL  RELATIVES : 

whether  within  the  scope  of  the  marriage  consideration,. . . .  697  and  note 

COLLATERAL  UNDERTAKINGS : 

personal  contracts  of  executors  and  administrators  to  pay  debts,  etc., 
of  deceased  often  confounded  with  collateral  undertakings, 12 

this  confusion  unwarranted ;  distinguishing  feature  of  the  two, 13-16 

this  expression  never  properly  applicable  to  a  promise  to  pay  a  de- 
ceased person's  debt,  when  made  before  probate  or  administra- 
tion,  : 15  Twte,  16 

statute  does  not  apply  to  a  promise,  the  substance  of  which  is  that 
the  promisor  will  pay  his  own   debt,  even  when  it  assumed  the 

form  of  a  promise  that  he  would  pay  the  debt  of  another, 214 

480,  484,  615,  617,  650 

semble  that  the  statute  is  satisfied,  only  when  the  undertaking  is  to 
respond  for  some  person  specifically  designated, 358,  359,  668 

and  that  undertaking  to  respond  for  debt  of  a  deceased  person,  be- 


760  INDEX. 

COLLATERAL  UNDERTAKING  S  —  ( Continued.)  Section. 

fore  probate  or  grant  of  administration,  is  not  within  statute, 359 

but  principal  debtor  may  be  a  corporation, 360 

a  promise  to  answer  for  tlie  debt,  etc.,  of  another  will  not  be  taken 
out  of  the  statute,  because  it  assumed  the  form  of  an  undertaking 

which  is  not  within  the  statute, 437 

statute  does  not  apply,  merely  because  some  other  person  would  be 

discharged  by  fultilment  of  the  promise,    484,  581 

husband's  promise,  during  coverture,  to  pay  his  wife's  debt  contracted 

before  coverture,  is  within  the  statute,  semble, 496,  note 

whether  a  promise  to  pay  the  promisor's  debt  to  a  transferee 
thereof,  in  discharge  of  a  debt  due  from  the  transferor  to  the  trans- 
feree, is  valid,  at  common  law  or  under  the  statute,  unless  both  the 
intermediate  debts  are  discharged  at  the  time  of  the  promise,. .  324-330 

509-518  and  mte 
Analysis  of  the  subject  of  collateral  undertakings  : 
I.  Definitions  of  terms  used  in  treating  of  collateral  undertakings, .  49-51 
distinction  between  guaranty  and  a  collateral  undertaking, ...     49 

"original"  and  " collateral  promises "  defined, -49,  50 

the  use  of  those  expressions  sometimes  leads  to  error, 50 

explanation  of  the  sense  in  which  "  promisor,"  "  third  person," 

etc.,  are  used  in  these  pages, .* 51 

n.  How  far  the  consideration  affects  the  validity  of  a  verbal  promise 

under  the  provisions  of  this  clause, 52-60,  307 

1.  Generally  the  consideration  is  regarded  as  immaterial, 52 

this  is  now  settled  in  England, id. 

it  is  the  correct  doctrine,  although  the  contrary  was  formerly 
distmctly  held, .^ 52,  53 

2.  The  consideration  is  only  material  as  it  helps  to  determine  the 

character  of  the  promise, 53,  54 

3.  No  consideration  can  take  out  of  the  statute  a  promise  which 

is  really  collateral, 54-59 

this  proposition  illustrated  by  several  cases, 54-59 

and  an  original  promise  is  not  within  the  statute,  though  the 

promisor  derived  no  benefit,  etc., 60 

in.  Classification  of  cases  apparently  or  actually  within  the  terms 
of  the  4th  section;  where  verbal  promises  are,  nevertheless, 

valid, 61-72 

difficulties  in  the  way  of  any  correct  classification, 61 

Mr.  Roberts's  Treatise,  and  the  note  to  Forth  v.  Stanton,  ...     62 
Ch.  J.  Kent's  classification,  in  Leonard  v.  Vredenburgh,. ...     63 

classification  by  Comstock,  C.  J.,  in  Mallory  v.  GDlett, 64 

other  attempts  to  classify  cases  under  this  clause, 65,  note 

merits  and  defects  of  these  systems  of  classification, 65,  66 

general  principles  upon  which  the  cases  are  classified  in  this 

work, 67,  68 

details  of  the  plan  adopted, ,.,.,... 68-72 

3ee  Classification, 


INDEX.  761 

COLLATERAL  UNDERTAKINGS  — (Cfen^mwerf.)  Section. 
rv.  General  rules  by  which  to  determine  the  validity  of  verbal  prom- 
ises under  this  clause  of  the  statute, 73-83 

V.  Cases  which  are  not  within  the  statute,  because  they  are  gov- 

erned by  some  subsequent  statute,  or  by  the  law;  merchant.  (  First 

'  Rule) 84-91 

See  Mercantile  Law;  Statutes. 

VI.  Cases  which  are  not  within  the  statute,  because  they  do  not 
satisfy  some  part  of  the  expression,  "  Special  promise  to  answer." 
{Second  Rule), 94-119 

1.  Where  the  promise  was  not  "  special," 95-101 

See  Implied  Pkomise,  II. 

2.  Where  the  liability  which  the  plaintiff  seeks  to  enforce 

grew  out  of  something  else  than  a  "  promise," 103-111 

See  Representation,  II. 
8.  Where  the  promise  was  not  directly  to  "  answer  "  for  the 

debt,  &c.,  of  another, 112-119,  491,  492 

See  Guaranty  by  Indirection. 
Vil.  Cases  which  are  not  within  the  statute,  because  they  do  not  sat- 
isfy some  part  of  the  expression,  "  debt,  default,  or  miscarria- 
ges,"   120-357 

meaning  and  effect  of  those  words, 120-125 

See  "Debt,  Default,  or  Miscarriages." 
Viil.  Examination  of  the  general  doctrine,  that,  in  order  to  set  the 
statute  in  motion,  there  must  be  two  concurrent  liabilities,. .  126-138 
See  Concurrent  Liabilities. 
IX.  Where  two  liabilities  did  not  concur,  because,  although  the  con- 
sideration moved  to  the  third  person,  he  had  not  incurred  any 
liability  therefor,  when  the  liability  of  the  promisor  took  effect. 

{Third  Rule), 139-268 

See  Liability  of  Third  Person. 

1.  The  doctrine  generally  stated  and  explained:    its  ori- 

gin,      139-146 

See  Liability,  &c.,  I. 

2.  The  principle  that  the  promise  is  witliin  the  statute,  if  the 

promisee  gave  any  credit  to  the  third  person,  stated, 

discussed,  and  illustrated  by  cases, 147-179 

See  Liability,  &c.,  II. 
8.  The  province  of  the  court  and  jury,  respectively,  upon 
the  question  whether  the  promise  was  original  or  collat- 
eral,    180-188 

See  Liability,  &c..  III. 
4.  Whether  tlie  promisee's  books,  &c.,  are  evidence  in  his 
favor  upon  the  question  to  whom  credit  was  given,  189-193 
See  Liability,  &c.,  IV. 
6.  Cases  where  the  promise  in  terms  contemplated  a  resort  to 

the  third  person, 194-225 

See  Conditional  Promise. 
96 


762  INDEX. 

COLLATERAL  UNDERTAKINGS  — (C(?7i«mwed)  Section, 

X.  Whether  an  exception  to  the  foregoing  rule  arises  where  the  prom- 

isor and  the  third  person  assumed  a  joint  liability, 237-247 

See  Joint  Promises,  I. 

XI.  Whether  such  an  exception  arises  when  the  third  person  was  a 
married  woman  or  an  infant, 248-268 

1.  Observations  applicable  to  either    species  of  auxiliary- 
promise, 248-251 

3.  Where  the  promise  was  auxiliary  to  that  of  a  married 

woman, 252-256 

See  MARRrED  Woman,  III. 
3.  Where  the  promise  was  auxiliary  to  that  of  an  infant, 

not  contracting  for  necessaries, 257-268 

See  Infant,  &c. 

XII.  Where  two  liabilities  did  not  concur,  because,  although,  the  prom- 
isor and  the  third  person  were  liable  for  the  same  debt,  &c.,  the 
third  person  was  discharged  before  the  promisor's  liability  took 
effect.  {Fourth  Rule), 269-335 

See  Discharge  op  Third  Person. 

1.  General  examination  of  the  question,. .  269-276,  284,  and  note 

See  Discharge,  &c.,  I,  II. 

2.  Where'  the  third  person's  discharge  resulted  by  operation 

of  law,  without  the  promisee's  express  discharge, . .  278-293 
See  Discharge,  &c..  III. 

3.  Where  the  abandonment  of  the  third  person's  liability  is 

inferred,  as  matter  of  fact,  from  the  acts,  &c.,  of  the 

promisee, 294-320 

See  Discharge,  &c.,  IV. 

4.  Where  the  third  person's  discharge  resulted  from  a  tri- 

partite agreement  between  him,  his  creditors,  and  the 

promisor, 321-357 

See  Discharge,  &c.,  V. 

XIII.  Cases  not  within  the  statute,  because  the  promise  was  not  made 
to  the  person  to  whom  the  debt  or  duty  assumed  by  the  promise 
was  to  be  discharged.  {Fifth  Rule), 358-478 

See  "Another  Person." 

1.  The  question  generally  examined, 358-384 

See  Another  Person,  I. 
3.  Whether  a  creditor  can  maintain  an  action  to  recover 
upon  a  verbal  contract  to  pay  the  debt,  when  he  was  a 

stranger  to  the  contract  and  the  consideration, 385-426 

See  Another  Person,  II. 

3.  Of  contracts  of  indemnity, 428-477 

See  Another  Person,  III,  IV. 

XIV.  Cases  not  within  the  statute,  because  the  promisor  was  already 
liable  for  the  debt,  &c.,  or  a  similar  one,  in  some  other  form,  or 
to  some  other  person,  or  had  only  been  technically  discharged 
from  a  previous  liability  therefor.  {Sixth  Rule), 482-518 

See  Former  Liability. 


INDEX.  763 

COLLATERAL  L^T)ERTAKINGS  —  {Continued)  8  sctioii. 

1.  The  question  general!)'  examined, 482-484 

Sec  Former  Liability,  L 

2.  Whether  party  may  show  he  was  not  liable  for  original 

debt,  so  as  to  bring  case  within  the  statute, 485-489 

See  Former  Liability,  IL 
8.  How  far  the  statute  permits  an  existing  liability  for  an- 
other to  be  altered  by  verbal  contract 490-496 

See  Former  Liability,  IIL 

4.  Promise  to  waive  a  technical  defense,. 497-508 

See  Former  Liability,  IV. 

5.  Promise  by  a  debtor  to  pay  a  transferee  of  the  debt,.  509-518 

See  Former  Liability,  V. 

XV.  Cases  not  within  the  statute,  because  the  substantial  effect  of 
fulfilment  of  the  promise  will  be  to  discharge  the  debt  out  of  a 
fund  of  the  debtor.  {Seventh  Rule), 519-570 

See  Fund. 

1.  Origin  of  the  rule ;  doubts  concerning  its  existence ;  the 

question  generally  discussed, 519-530 

See  Fund,  I-IV. 

2.  Where  the  fund  was  placed  in  the  promisor's  hands  for 

the  purpose  of  paying  the  promisee, 531,  532 

See  Fund,  V. 
d.  Where  there  was  no  trust  attaching  to  fund,  specifically 

in  favor  of  the  promisee, 533-548 

See  Fund,  VI. 

4.  Where  the  creditor,  debtor,  and  promisor  were  parties  to 

the  agreement  to  pay  the  debt, 549-564 

See  Fund,  VII. 

5.  Where  the  fund  proves  to  be  insuflScient  to  discharge  the 

promise, 565  -570 

See  Fund,  VIII. 

XVI.  Cases  not  within  the  statute,  because  the  promisor's  property 
was  already  liable  for  the  debt.  {Eighth  Rule), 571-604 

See  Lien. 

1.  English  cases  from  which  the  seventh  and  eighth  rules 

were  derived, 575-591 

See  Lien,  I. 

2.  American  cases  under  the  eighth  rule, 592-604 

See  Lien,  II. 

XVII.  Whether  the  seventh  and  eighth  rules  contain  all  the  princi- 
ples fairly  to  be  deduced  from  the  cases  cited  under  them, . .  605-647 

1.   Statement  and  brief    examination  of    various  theories 

derived  from  the  cases  mentioned, 606-614 

comments  of  English  and  American  writers  thereon,  .  .note,  606 

four  theories  which  are  now  advocated, 607 

these  theories  briefly  discussed 608-612 

Chief  Justice  Kent's  proposition,  as  to  efiFect  of  a  new  and 
origmal  consideration, 613,  see  also  592-594 


764  I  IT  D  E  X . 

COLLATERAL  UNDERTAKINGS  — (CowCmwef?.)  Section, 

2.  Discussion  and  rejection  of  the  doctrine  that  a  promise  can 
be  taken  out  of  the  statute  because  the  promisor's  leading 

object  was  to  subserve  his  own  interest, 615-647 

See  LEADiNa  Object  op  Promisor,  III 
XVII.  Cases  where  a  guaranty  is  not  within  the  statute  {Ninth 
Rule), 648-679 

1.  Where  the  debt,  etc.,  passed  from  the  guarantor  to  the  guar- 

antee upon  a  consideration  moving  between  them 650-664 

See  Guaranty,  I. 

2.  "Where  the  debt  guarantied  was  thereafter  to  be  contracted 

through  the  agency  of  the  guarantor,  acting  as  the  factor  of 

the  guarantee, 665-679 

See  Del  Credere  Commission. 

COMPROMISE : 

A  promise,  in  compromise  of  a  disputed  claim  of  liability,  cannot  be 
liable,  brought  within  statute  by  showing  that  another  person  was 
and  the  promisor  was  not, 485-489 

CONCURRENT  LIABILITIES : 

I.  In  order  to  set  the  statute  in  motion,  there  must  be  two  concurrent 

liabilities, 126 

II.  The  liability  of  the  third  person  must  be  one  which  could  have 

been  enforced  by  action,  not  merely  an  imperfect  or  moral 
obligation, 127,  128 

III.  The  third  person  must  be,  or  must  have  been  concurrently  liable, 

for  the  identical  debt  or  duty  which  the  promisor  undertook  to 
discharge, 129-137 

1.  The  case  of  Read  v.  Nash,  which  sustained  a  verbal  promise 

to  pay  £50,  and  costs,  in  consideration  of  withdrawing  the 

record  in  an  action  for  assault  and  battery, 130,  131 

Discussion  which  this  case  has  provoked, 131  note 

2.  But,  semble,  if  the  promise  was  to  pay  a  certain  sum  in  satis- 

faction of  the  action,  it  would  be  within  the  statute  130  note 

132,  133 

3.  It  would  clearly  be  so  if  the  third  person  appeared  to  be 

liable  in  the  action, id.,  and  134 

Erroneous  application  of  the  ruling  in  Bray  v.  Freeman,  135 

4  Where  a  verbal  promise  was  sustained  to  pay  interest  upon  a 
principal  sum  payable  by  a  third  person,  but  upon  which  he 
was  not  liable  to  pay  interest, 136 

5.  Where  a  verbal  promise  to  pay  a  counsel  fee  was  sustained, 
the  services  having  been  rendered  to  a  married  woman  in  an 
action  for  divorce, 137 

IV.  Where  two  liabilities  did  not  concur,  although  the  consideration 

moved  to  the  third  person,  because  he  had  incurred  no  liability 
corresponding  with  that  of  the  promisor,  when  the  latter's  lia- 
bility took  effect.    See  Liability  of  Third  Person. 


INDEX.  765 

CONCURRENT  LIABILITIES  — {Continued.)  Section. 

V.  Where  two  liabilities  did  not  concur,  although  the  promise  was 
to  pay  a  third  person's  debt,  etc.,  because  he  was  discharged 
before  the  promisor's  liability  took  effect.  See  Disciiauge  of 
Third  Person. 

CONDITIONAL  PROMISE : 

Cases  where  the  question  whether  the  promise  was  original  or  collateral, 
arose  upon  its  terms,  which  contemplated  a  resort  by  the  promisee  to 

the  third  person, 194-225 

L  Where  the  promise  was  to  pay,  if  the  third  person  did  not,. . .  195,  19C 
this  promise  is  conditional  and  presumptively  within  the 

statute  as  matter  of  law, 195 

when   it   may  be  taken  out  of    the  statute  by  affirmative 

proof, 196 

n.  Where  the  promise  was  to  see  the  promisee  paid,  or  to  that  ef- 
fect,   197-200 

to  see  paid,  presumptively  imports  a  collateral  undertaking, 

but  the  party  may  show  that  it  was  original, 197-199 

effect  of  the  words  "  secure,"  "  security,"  and  "  guaranty," 

199  note 

effect  of  the  words  "  to  make  good," 200 

m.  Effect  of  words  describing  the  contract  between  the  promisee 

and  the  third  person, 201-205 

"  hire,"  202,  "  purchase,"  203,  204,  "  sell,"  205. 

IV.  Where  the  promise  was  to  become  a  party  to'  a  note  or  bill  of 

exchange  to  be  made  by  the  third  person, 206-215 

1.  Verbal  acceptance  of,  or  verbal  promise  to  accept  an  existing 

bill  of  exchange  is  valid, 206,  210  note 

if  non-existing,  valid,  only  in  favor  of  purchaser, id- 

but  now  regulated  by  special  statutes id. 

2.  Promise  to  accept  a  non-existing  bill  of  exchange,  for  accom- 

modation of  drawer,  is  within  the  statute, 207 

other  cases  of  promise  to  accept,  within  the  statute, 208 

3.  Whether  a  iiromise  to  indorse  the  bill  or  note  of  a  third  per- 

son is  within  the  statute, 209,  210 

it  clearly  is  so,  when  made  for  the  third  person's  accom- 
modation,    id.  and  211 

4  A  promise  to  join  the  third  person  as  maker  of  a  promissory 
note,  for  his  accommodation,  is  within  the  statute 211 

5.  A  promise  to  indemnify  the  promisee  against  his  indorsement 

of  a  third  person's  bill,  when  made  upon  a  consideration 
moving  to  the  third  person,  is  within  the  statute, 212,  213 

6.  But  promise  to  indorse  not  within  statute  if  transaction  was 

really  for  accommodation  of  promisor, 214,  215 

See  also  Another  Person,  IV. 

V.  Where  promise  is  not  within  the  statute,  although  conditional 

upon  non-fultilmeut  by  third  person, .  216-325 


766  INDEX. 

CONDITIONAL  THOMISE  — {Continued.)  Section. 

1.  A  promise,  conditional  by  its  terms,  may  be  taken  out  of  the 
statute,  by  affirmative  proof  that  the  third  person  incurred 
no  liability, 216 

3.  Thus  where  third  person  was  mere  servant  of  promisor, 217 

3.  Or  where  he  was  not  liable,  although  he  received  the  benefit 

of  the  consideration,  because  it  was  not  furnished  upon  his 
express  or  implied  request, 218,  219  and  note 

4.  These  propositions  illustrated  by  cases, 220-225 

CONSIDERATION : 

statute  at  first  supposed  to  dispense  with  proof  of, 9 

but  ruled  in  Rann  v.  Hughes  that  common  law  rule  respecting  con- 
sideration, is  unaffected  by  the  statute, 10, 11  and  note 

statutory  requirement  superadded  to  the  common  law  requirement 
that  there  must  be  a  consideration, id. 

consideration  of  the  promise  of  an  executor  or  administrator,  etc. 
See  Executors  and  Administrators,  III,  3. 

efiect  of  the  consideration  of  a  promise  to  answer  for  the  debt,  etc., 
of  another,  upon  the  application  of  the  statute  thereto. 
See  Collateral  Ukdertakings,  II. 

discharge  of  original  debtor  as  a  consideration  for  stranger's  promise 
to  pay  the  debt.    See  Discharge  op  Third  Person. 

materiality  of  receipt  of  consideration  by  promisor,  where  promise 
was  to  pay  for  services,  etc.,  to  be  furnished  under  a  pre-existing 
contract  with  a  third  person, 307-313 

it  is  material  only  upon  the  question  whether  the  former  contract 
was  abandoned, 310 

in  England  a  stranger  to  the  consideration  cannot  sue  upon  a  con- 
tract,   386  and  note 

the  rule  in  the  United  States.  See  "  Another  Person,"  II ;  Fund,  VII. 

of  the  doctrine  that  the  consideration  must  be  co-extensive  with  the 
promise, 10,  11,  496,  note 

of  the  discharge  of  a  lien  upon  the  property  of  the  promisor,  as  the 
consideration  of  a  promise.     See  Lien. 

the  doctrine  condemned,  that  whenever  the  consideration  is  new  and 
original  and  moves  to  the  promisor,  the  case  is  not  within  the 

statute, 592-594,  613  and  note 

See  Lien,  II ;  Leading  Object  of  Promisor. 

agreements  in  consideration  of  marriage.  See  Marriage  Agreements. 

CONTRACT : 

where  the  promise  is  to  pay  for  services,  etc.,  which  the  promisee  has 
already  contracted  with  a  third  person  to  furnish,  the  test  is 

whether  the  original  contract  was  abandoned, 294-830 

See  Discharge  of  Third  Person,  IV. 

when  a  stranger  to  the  consideration  may  maintain  an  action  upon 
a  contract.    See  "  Another  Person,"  II ;  Fund,  VII. 

of  indemnity.     See  "  Another  Person,"  III,  IV. 

validity  of  verbal  contracts  generally.  See  Statute  of  Frauds  ; 
Executors  and  Administrators  ;  Collateral  Undertakings  ; 
Marriage  Agreements. 


INDEX.  767 

CORPORATION  :                                                                                           Section, 
is  included  within  tlie  words  "  another  person," 360 

CREDIT : 

I.  Deceitful  representations  made  to  give  credit  to  a  third  person, 

not  within  the  statute.     See  Repuesentations,  II,  III. 

II.  The  test  of  the  application  of  the  statute,  where  goods,  etc.,  fur- 

nished to  third  person,  is  whether  credit  was  given  to  him. 
See  Liability  of  Third  Person,  II. 

III.  Whether  a  promise  to  respond  for  goods,  etc.,  furnished  upon 

the  credit  of  a  married  woman  or  an  infant,  is  within  the 
statute.    See  Married  Woman  ;  Infant,  etc. 

CREDITOR: 

promise  not  within  statute  unless  made  to  creditor.  Sec  "  Another 
Person,"  I,  III,  IV. 

whether  a  creditor  can  maintain  an  action  upon  a  verbal  promise  to 
pay  the  debt,  made  to  his  debtor,  he  being  a  stranger  to  the  con- 
sideration and  the  contract.     See  "  Another  Person,"  II. 

or  upon  a  verbal  promise  subsequently  made  to  him  by  person  who 
received  the  consideration  from  the  debtor ;  id.,  and  Fund,  VI. 

whether  he  can  maintain  an  action  upon  a  like  verbal  promise,  when 
he  was  a  party  to  the  agreement,  but  a  stranger  to  the  consideration. 
See  Fund,  VII. 

when  entitled  to  attack  antenuptial  or  postnuptial  settlement.  See 
Marriage  Agreements,  IV. 

D. 

"DEBT,  DEFAULT  OR  MISCARRIAGES:" 

meaning  and  effect  of  these  words, 120-12') 

"Debt"  indicates  liability  arising  purely  out  of  a  contract, 121 

"Default"  is  applicable  cither  to  a  breach  of  contract  or  a  breach 

of  duty, 121,  122 

"Miscarriages"  is  applicable  exclusively  to  a  liability  arising  out 

of  a  tort, 122 

the  three  together  include  every  act  for  which  a  third  person 

may  be  subjected  to  an  action, 123 

the  statute  is  applicable  to  promises  to  respond  for  the  tort  of  a  third 

person,  as  well  as  his  contract, 123-125 

as  trespass  or  trover, id. 

or  the  default  of  a  collecting  agent 124  note 

DEBTOR: 

promise  made  to  debtor,  not  within  statute.  See  "  Another  Person.'' 

DECEASED  PERSON : 

whether  the  promise  to  pay  a  deceased  pei"son's  debt,  made  before 
probate  or  grant  of  administration,  is  within  the  statute,  15  note,  16,  359 


768  INDEX. 

DECEITFUL  REPRESENTATIONS :  Section, 

See  Representations,  II. 

"DEFAULT:" 

meaning  of  the  word, i 

See  "  Debt,  Default  or  Miscarriages." 

DEFENCE  OF  THE  STATUTE: 

who  entillcd  to  interpose  it,  and  who  may  be  compelled  to  inter- 
pose it, •, 160,161  and  note,  173 

DEFINITIONS : 

of  wordi<,  jfcc,  used  in  a  special  sense, 49-51 

DEL  CREDERE  COMMISSION: 

Whether  the  contract  of  a  factoi\  acting  under  a  del  credere  commission 

IS  within  the  statute. 
it  wquld  seem  that  this  description  of  contract  does  not  satisfy  the 

letter  of  the  statute,  as  there  is  no  "  another  person,". . . .  358,  649,  668 
but  courts  have  generally  regarded  it  as  within  the  letter,  but  with- 
out the  intent, 649 

the  contract  and  factor's  liability  defined, 665 

varying   opinions  as  to  whether  the    factor    is    a    principal  or  a 

surety,    665  note 

contract  is  now  admitted  to  be  without  the  statute, 666 

various  reasons  assigned  for  that  conclusion, 666  and  note 

most  satisfactory  is  that  it  is  extension  of  his  liability  as  factor,.  667,  668 
but  semble,  also,  that  it  is  not  for  the  default,  etc.,  of  a.uy  particular 

person,   668 

various  American  cases,  holding  that  the  contract  is  not  within  the 

statute,   669-675 

they  have  been  followed  in  England, 676-679 

DELEGATION : 

a  description  of  novation.    See  Novation. 

DEVASTAVIT : 

See  Executors  and  Admintstratgrs,  III,  2. 

DISABILITY : 

of  third  person,  whether  it  takes  out  of  the  statute  an  auxiliary 
promise  to  respond.    See  Infant,  &c.  ;  Married  Woman. 

DISCHARGE  OF  LIEN : 

if  it  operates  to  discharge  the  debt,  a  stranger's  promise  to  pay 
the  money  is  not  within  the  statute, 286-293  and  note 

otherwise,  the  application  of  the  statute  depends   upon  the  ques- 
tion whether  the  new  promisor  was  interested  in  the  property. 
See  Lien. 


INDEX.  769 

DISCHARGE  OF  PROMISOR:  Section. 

where  promise  was  llie  renewal  of  a  liability  from  which  the  prom- 
isor had  been  teelmieally  (liseliari,a'd.     Sec  Foiimku  Liahimty,  IV. 

of  the  doctrine  that  a  promise  to  pay  to  a  creditor  of  the  promisor's 
creditor  a  debt  due  by  the  promisor,  is  not  valid,  at  common  law  or 
under  the  statute,  unless  both  of  the  intermediate  debts  are  dis- 
charged,   324-330 ;  509-518  and  note. 

DISCHARGE  OF  THIRD  PERSON : 

discharge  of  estate  in  consideration  of  personal  undertaljing  of  exec- 
utor or  administrator  will  not  take  the  case  out  of  the  statute,. .  15  note 
discharge  of  original  debtor  through  laches,  will  not  save  a  stran- 
ger's promise  to  pay  the  debt, 55,  56,  58 

a  promise  to  pay  a  certain  sum  in  discharge  of  an  admitted  debt  of  a 

third  person  is  within  the  statute, 130  note,  133,  133 

and  semble  that  the  rnlc  is  the  same,  if  the  payment  will  satisfy  a 

clami  of  liabilit)%  whether  well  founded  or  not, id. 

doctrine  that  where  debtor  has  provided  for  pajnnent  of  debt  by 
contract  with  third  person,  creditor's  election  to  enforce  the  con- 
tract discharges  the  debtor, 399  note,  400,  401 

Tlie  third  person's  discharge,  before  tlie  promisor's  liaUlity  took  effect,  wiU 
take  out  of  the  statute  a  jyromise  to  answer  for  tlie  same  debt,  etc. 

(Collateral  Undertakings,  Fourth  Rule), 2G9-357 

the  rule  stated, 269 

its  origin, 271,  279 

its  first  announcement  provoked  considerable  opposition, 272 

but  now  universally  established, id. 

I.  That  the  rule  is  satisfied,  although  the  discharge  was  not  the  con- 

sideration of  the  promise, 273 

II.  Whether  an  executory  agreement  to  discharge  suffices, 274-276 

284  note 
HI.  Where  the  third  person's  discharge  arose  by  operation  of  law, 
from  some  act  or  omission  of  the  promisee,  without  an  express 
discharge, .- 278-293 

1.  Discharge  from  arrest,  under  a  ca.  sa.,  with  the  creditor's 

assent,  suflices, 278 

cases  illustrating  this  proposition 279-285 

it  makes  no  ditference  that  the  promise  was  a  guaranty 

that  the  d(;btor  should  pay, 280 

or  that  the  execution  or  arrest  was  irregular, 281-284 

2.  Whether  the  rule  is  satisfied  by  the  discharge  of  a  levy 

under  a  fieri  facias  or  a  distress  warrant, 286-293 

IV.  Where  an  abandonment  of  the  third  person's  liability,  under  au 
existing  contract,  is  inferred,  as  matter  of  fact,  from  some  act  or 

omission  of  the  promisee,  other  than  an  agreement, 294-320 

1.  The  general  doctrine,  and  the  grounds  upon  which  it 

rests, 294-296.305  note 

the  test  is  whether  the  promisee  could  recover  against  the 

original  contractor, ^ 297,  305  note 

97 


770  INDEX. 

DISCHARGE  OP  THIRD  PERSON  — (Cow^mwetZ.)  Section, 
points  of  similarity  between  the  application  of  this  doc- 
trine and  of  the  third  rule, 298,  299 

cases  illustrating  the  foregoing  remarks, 300-306 

the  abandonment  may  be  proved  by  words  only, 305 

unless  the  contract  was  of  such  a  nature  that  words  will 
not  suffice, 806 

2.  Whether  the  receipt  of  the  consideration  by  the  promisor 

is  material  in  this  class  of  cases, 307-313 

3.  Where  the  new  promise  was  in  terms  an  assumption  of 

the  liability  of  the  original  contractor, 314-320 

V.  Where  the  third  person  was  discharged  by  an  agreement  to  which 

his  creditor  and  the  new  promisor  were  parties, 321-357 

The  doctrine  of  novation  defined  and  explained, 321,  333 

1.  Where  the  agreement  between  the  three  parties  provided 

for  the  payment  to  the  promisee  of  a  debt  due  by  the 

promisor  to  the  third  person, 324-337 

This  process  is  known  in  the  civil  law  as  a  delegation, ....  325 

2.  The  common  law  doctrine  with  respect  to  such  agree- 

ments, as  laid  down  by  Buller,  J.,  in  Tatlock  v.  Harris, 
and  the  three  propositions  derived  therefrom, , . . ,  326 

3.  Cases  illustrating  the  proposition  that  the  promise  is  good 

when  both  the  intermediate  debts  are  extinguished,  and 
showing  what  acts  are  sufficient  to  extinguish  them,  327-337 

4.  Where  the  agreement  was,  that  the  new  promisor  assumed 

the  third  person's  liability,  in  consideration  of  the  lat- 

ter's  discharge,    338-357 

The  three  persons  in  interest  must  concur, 338 

*  The  consideration  passing  between  the  promisor  and 

the  third  person  is  immaterial, id. 

What  suffices  to  discharge  the  debtor, 339 

5.  Cases  illustrating  the  general  doctrine,  and  the  rule  that 

the  transaction  is  valid  only  where  the  three  persons  in 

interest  concurred, 340-352 

It  is  not  necessary  that  the  debt  discharged  should  be 
a  clearly  ascertained  liability, 353 

6.  Where  the  third  person  and  the  new  promisor  assumed  a 

joint  liability  in  discharge  of  a  previous  several  liability 
of  the  third  person  alone, 354-356 ;  342-344 

DISCONTINUANCE  OF  SUIT : 

will  not  take  out  of  the  statute  a  stranger's  promise  to  pay  the  debt,    58 

DISPUTED  CLAIM : ' 

a  promise  to  compromise  disputed  claim  of  liability  cannot  be  brought 
within  the  statute,  by  showing  that  promisor  was  not  liable,  and  a 
third  person  was, 485-489 


INDEX.  771 

DISTRESS  WARRANT :  Section, 

forbearance  to  issue,  will  not  take  out  of  the  statute  a  stranger's 

promise  to  pay  the  debt, 58 

discharge  of  a  levy  under,  as  a  ground  for  taking  out  of  the  statute 

a  stranger's  promise  to  pay  the  rent, 286-293 

And  see  Lien. 

DIVORCE : 

a  promise  to  pay  a  counsel  fee  for  services  rendered  to  a  married 
woman  in  an  action  for  divorce,  is  not  within  the  statute, 137 

E. 

ENTRIES : 

in  the  books  of  the  promisee,  whether  evideijce  that  the  contract  was 
original.    See  Liability  op  Thied  Person,  IV. 

ESTOPPEL: 

when  promisor  cannot  prove  original  promise  was  collateral,  . . .  485-489 

EVIDENCE: 

before  the  statute,  all  contracts  proved  by  oral  testimony, 2, 8 

statute  introduced  a  new  rule, 3, 5, 8 

admissibility  of  entries  in  promisee's  books,  sending  a  bill  to  prom- 
isor, etc.,  to  show  promise  original, 189-193 

See  Liability  of  Third  Person,  IV. 
general  admissibility  of  plaintiff's  books  in  his  own  favor  under  local 
statutes,  or  rules  of  evidence, 192  Twte 

EXCEPTIONS : 

to  statute  of  frauds,  are  cases  governed  by  mercantile  law  or  some 
other  statute, 84 

EXECUTION: 

forbearance  upon,  no  reason  why  statute  is  inapplicable, 58 

whether  release  of  levy  takes  promise  out  of  statute, 286-293 

See  DiscHAROR  op  Third  Person  ;  Lien. 
New  York  decisions  as  to  effect  of  release  of  levy  under, 293  note 

EXECUTORS  AND  ADMINISTRATORS: 

questions  arising  under  the  provisions  of  the  fourth  section  of  the 

statute  relative  to  their  promises, 12—48 

I.  This  provision  considered  in  connection  with  the  second  clause  of 

the  same  section, ■ 12-16 

the  statute  avoids  their  verbal  promises  to  answer  damages  out 

of  their  own  estates ;  oliject  of  this  provision, 12 

frequently  confounded  with    provisions    relative  to  collateral 
undertakings, 12,  13 


772  INDEX. 

EXECUTORS  AND  ADMlNlST'RA.TOTiS  —  iContmtted.)  SecHon. 

points  of  similarity  between  eacli  provision, 13 

points  of  dissimilarity  between  them, 14 

executor,  etc.,  already  liable  'for  debts,  etc.,  in  his  representative 
capacity,  and  property  held  by  him  pledged  for  their  payment,    14 

errors  to  which  the  confusion  has  led 15  note 

the  two  classes  of  cases  always  plainly  distinguishable, Ifi 

II.  Promises  to  pay  the  debt  of  the  deceased  made  before  probate  or 

administration, 16-22 

in  general  such  promises  properly  belong  to  neither  class,. . .  16,  359 
whether  executor's  promise  before  probate  is  within  the  statute,  17-22 
distinction  in  such  cases  between  an  executor  and  administrator,    17 

Lord  Hardwicke's  ruling  in  Tomlinson  v.  Gill, 18,  19 

whether  the  doctrine,  of  relation  back  to  grant  of  administration 

affects  the  question, 19 

doubtful  whether  any  such  distinction  exists 20 

this  question  examined  on  principle,  irrespective  of  any  statu- 
tory provision  affecting  executors'  rights  and  duties 21 

effect  of  statutes  requiring  executors  to  qualify, 22 

III.  When  promise  not  to  be  fulfilled  out  of  estate  of  the  promisor,  23-32 

1.  Promise  in  representative  capacity,  not  affected  by  statute,. . .     23 

whether  a  promise  not  in  terms  attaching  to-  promise's 
estate  is  within  statute, id. 

2.  Whether  possession  of  assets  will  suflSce  to  take  the  promise 

out  of  the  statute, 24-32 

the  question  examined  upon  principle, 24,  25 

the  rule  established  in  Stebbins  v.  Smith, 26 

apparent  departure  from  it  in  Silsbee  v.  Ingalls, 27 

the  same  rule  followed  in  Pratt  v.  Humphrey, 28 

the  question  further  examined, 29 

cases  tending  to  a  contrary  ruling, 30-32 

whether  the  rule  applies  to  an  executor  de  son  tort, 30 

promisor  must  actually  possess  assets — a  devastavit  will 

not  suffice, 31 

promisee  can  recover  only  his  proportionate  part  of  the  assets,    32 

3.  What  constitutes  a  sufficient  consideration  for  an  executor's 

or  administrator's  promise  to  respond  personally, 32  note 

IV.  When  the  subject  matter  or  the  form  of  the  promise  does  not 

satisfy  the  statute, 33-48 

1.  Implied  promises,  liabilities  not  growing  out  of  promises, 
and  promises  to  do  some  act.  other  than  to  "  answer  dam- 
ages," not  within  the  statute, 33 

implied  promises ;  payment  of  interest  upon  or  part  of  the 
principal  of  a  debt  or  legacy, 34,  35 

representation  not  within  the  statute 35  a 

submission  to  arbitration  not  a  promise  to  "  answer  dam- 
ages," within  the  statute, 36 

nor  is  it  an  admission  of  assets  36  note 


INDEX.  773 

EXECUTORS  AND  ADMINISTRATORS  — (Cbn/mwerf.)  section. 

effect  of  an  award  in  such  cases, id. 

express  promise  to  pay  the  award  is  within  the  statute,  .  37,    38 
2.  Statute  confined  to  liabilities  of  e.xecutor,  etc.,  in  representa- 
tive capacity, 39 

cases  illustrating  this  construction, 40,  41 

8.  Whether  an  executor,  etc.,  is  liable  at  law  on  an  express 

promise  to  pay  a  general  legacy  or  distributive  share,  . .  42-48 

in  England  he  is  not  liable  although  he  has  assets, 42 

otherwise,  if  legacy  was  specific  or  has  been  separated  from 

common  stock, id. 

in  several  of  the  United  States  action  at  law  may  be  main- 
tained, sometimes  without  an  express  promise, 43 

4.  But  the  statute  applies  when  the  action  seeks  to  charge  the 

defendant  personally  upon  such  a  promi.se, 44 

scmble,  the  rule  is  otherwise  when  promise  was  made  and 

action  is  brought  in  a  representative  capacity, 45,  46 

but  not  so  ruled  in  Massachusetts, 45,  46 

EXPROMISSIO  AND  EXPROMISSOR: 

defined, _^ ^^..^^ ^..^.^ 322 

EXTENSION: 

of  time  of  payment  of  debt,  not  sufficient  to  take  out  of  statute 
another's  promise  to  pay  it, 58 

EXTINGUISHMENT  OF  ORIGINAL  DEBT: 

will  take  promise  out  of  statute.    See  Dischabge  op  Third  Person. 

F 

FACTOR: 

under  a  del  credere  commission.    See  Del  Credere  Commission. 

FIERI  FACIAS  • 

discharge  of  levy  under,  as  a  ground  for  taking  out  of  the  statute  a 
stranger's  promise  to  pay  the  debt.  See  Execution  ;  Discharqh 
OK  Third  Person;  Lien. 

FORBEARANCE : 

sufficient  consideration  for  executor's  personal  promise  to  pay, ...  32  note 
will  not  take  out  of  statute  a  stranger's  promise  to  pay, 58 

FORilER  LIABILITY : 

Cases  where  the  promise  was  the  reneical  of  a  former  lialn'lif)/  of  the 
promisar,  or  the  removal  of  some  t^ehnirtil  impediment  to  its  enforce- 
ment hy  the  promisee.    (Collateral  Undertakings,  Sixth  Ru!e),. .  482--518 
I.  The  rule  stated  and  explained;  the  statute  does  not  apply  merely 
because  another  person  wa.s  liable,  jointly  or  severally,  with  the 
promisor, ; .  ^ 482-484 


774  INDEX. 

FORMER  LIABILITY  —  (Coniinued.)  Section. 

II.  When  the  promise  admits  original  liability,  promisor  cannot  bring 

it  within  the  statute  by  showing  that  he  was  not,  and  some 

other  person  was  liable, 485-489 

includes  an  admission  of  liability  of  the  promisor's  property,. . . .  487 

III.  "When  verbal  alteration  of  the  form  of  a  previously  existing  lia- 

bility for  another  may  be  made, 490-496 

but  that  promisor  was  a  member  of  a  corporation,  which  was 

primarily  liable,  does  not  affect  the-question, 496 

whether  a  liability  in  one  right  will  sustain  a  verbal  promise  to 

answer  in  another  right, 496  and  note 

rV.   A  promise  to  waive  a  technical  defence,  against  an  action 

founded  upon  a  former  engagement  of  the  promisor  for  the 

debt  of  another,  is  not  within  the  statute, 497-508 

1.  As  in  the  case  of  bankruptcy,  limitations,  &c., 497 

so  where  a  new  promise  was  made  before  the  statute  of 
limitations  had  run, 497  note 

2.  Whether  the  principle  extends  to  cases,  where  one  partner 

promises  to  pay  a  debt,  for  which  the  other  partner  had 
pledged  the  firm  credit  without  authority, . .  498-500  and  note. 

3.  Or  to  cases  where  the  promisor  had  been  discharged  from  a 

fonner  joint  debt  by  operation  of  some  rule  of  law,. .  501,  503 

4.  The  statute  does  not  apply  where  a  guarantor,  indorser,  &c., 

discharged  by  laches,  &c.,  renews  his  liability, 503-508 

rulings  contra  in  Connecticut, _ 504 

cases  showing  that  a  waiver  of  the  discharge,  with  full- 
knowledge  of  the  facts,  is  valid  at  common  law  and  under 

the  statute, 505-507 

whether  a  contract,  upon  a  new  consideration,  to  waive  the 

discharge,  is  good  without  showing  knowledge, 508 

V.  Whether  the  promise  of  a  debtor  to  pay  his  debt  to  a  transferee  • 
thereof,  in  discharge  of  a  debt  of  the  transferor  to  the  trans- 
feree, which  remains  imdischarged  after  the  promise,  is  valid 
at  common  law,  or  within  the  statute  of  frauds,.  509-518  and  note 
the  current  of  authorities  in  the  United  States  is,  that  promise  to 
pay  to  a  transferee  is  valid,  under  the  statute  and  at  common 

law,  without  any  new  consideration, 510,  518  and  Tiote 

but  it  seems  that  the  English  courts  still  adhere  to  the  rule  that 
in  order  to  render  it  valid-,  both  intermediate  debts  must  be 

discharged, id,  and  33'^330 

the  debt  must  be  ascertained  and  defined  —  not  a  mere  possi- 
bility,  518  not^ 

but  if  only  computation,  measurement,  &c.,  required,  it  maybe 
the  subject  of  such  promise, 518  note,  334 

FRAUDULEKT  CONVEYANCES: 

marriage  a  suflicient  consideration  to  sustain  antenuptial  conveyance 

against  creditors, ; 696 

unless  grantee,  &c.,  party  to  an  actual  fraud, . ; id.  note 

the  rule  respecting  postnuptial  conveyances.    See  Marriage  Agree- 
ments, IV. 


INDEX.  775 

FRAUDULENT  REPRESENTATIONS:  SecUon. 

liability  created  by,  is  not  witliiu  the  statute.  See  Representa- 
tions, II,  IV. 

FUND: 

Cases  where  the  existence  of  a  fund  of  the  debtor  in  the  promisor's 
Jiands  takes  out  of  the  statute  a  promise  to  pay  anot/ier's  debt,  (Col- 
lateral Undertakings,  Seventh  Rule,). . . '. 519-570 

I.  Where  the  promise  was  to  apply  to  the  payment  of  another's  debt, 

money  or  property  of  the  debtor  in  the  hands,  or  to  come  to 
the  hands,  of  the  promisor, 519,  526 

II.  Conflict  of  opinion  as  to  whether  the  rule  extends  any  further,  520-523 

and  see  post  I X 

III.  The  more  extended  rule  adopted ;  its  origin,  523-529,  and  see  2^ost  IX. 

IV.  The  fund  need  not  be  applicable  to  tlie  f  ulfiliuent  of  the  promise 

in  the  same  fonn  in  which  it  came  from  the  debtor, 530 

•  V.  Where  the  fund  was  placed  in  the  promisor's  hands  for  the 

express  purpose  of  paying  the  promisee,. , . . '. 531,  533 

case  of  an  assignee  for  benefit  of  creditors, 533 

VI.  Where  there  was  no  specific  trust  in  favor  of  the  promisee,  arid 

he  founds  his  action  upon  an  express  promise  made  upon  a 
consideration  moving  from  him,  in  contemplation  of  a  fund  in 
the  hands  of  the  promisor  proceeding  from  the  debtor,  . .  533-548 

1.  Where  the  promisor  controls  the  fund,  but  fulfilment  of  his 

promise  will  acquit  him  of  a  duty,  the  statute  does  not 

apply, 533 

cases  thereupon, 534-540 

cases  contra, 541-545 

2.  It  does  apply  where  fulfilment  of  his  promise  will  not  acquit 

him  of  a  duty, 533,  546,  547 

4.  Or  where  he  does  not  control  the  fund, 533,  548 

VII.  Where  the  promise  was  made  to  the  creditor,  in  consideration 

of  a  fund  then  furnished  to  the  promisor  by  the  debtor, 
the  three  being  parties  to  the  agreement, 549-504 

1.  Cases  holding  such  an  agreement  not  within  the  statute,  .  551-563 

2.  Ruling  in  Massachusetts,  that  all  agreements  depending  upon 

a  fund,  are  within  the  statute, 563,  564  and   note 

VIII.  Whether,  if  the  fund  proves  insuflicient,  the  promisor  can  be 

holden  for  the  deficiency, 629,  56.5-570 

1.  He  cannot,  as  a  general  rule, 565,  566 

3.  But  if  the  fund  is  unpaid  price  of  property  purchased  from 

the"  debtor,  its  inadequacy  is  immaterial, 530,  567 

3.  Rulings  allowing,  in  other  cases, a  recovery  for  the  deficiency 

criticized, 568-570 

IX.  Of  the  doctrine  tluvt  a  fund  proceeding  from  the  creditor  will 

take  the  case  out  of  the  stat)ite,  and  other  disputed  ques- 
tions connected  with  the  above  principles,  528,  606  note,  607-614 
And  see  Leading  Object  of  Promisor,  II,  III. 


776  INDEX. 

G. 

GUARANTOR:  Section. 

renewal  by  a  guarantor  of  a  liability  from  whicli  he  had  been  dis- 
charged by  laches,  &c.,  not  within  the  statute, 503-507 

whether  it  is  necessary  to  show  that  the  renewal  was  being  made 
with  full  knowledge  of  the  discharge, 508 

theory,  long  upheld  in  New  York,  that  a  guarantor  of  a  note,  «S5C., 
might  be  regarded  as  a  maker.    See  Guaranty,  I,  3. 

GUARANTY: 

erroneously  applied  to  personal  undertakings  of  executors,  &c., 13 

collateral  undertakings  also  erroneously  called  guaranties, 49 

definition  and  derivation;   distinction  between  collateral  contracts 

and  guaranties, id 

guaranty  of  payment  or  collection  implied  in  some  of  the  United 

States,  upon  the  transfer  of  a  chose  in  action, 100  note,  653  note 

such  a  guaranty  is  not  within  the  statute, 100  note 

a  promise  to  procure  the  execution  by  a  fourth  person  of  a  guaranty 

for  a  third  person  held  not  to  be  within  the  statute, 114,  115 

See  Guaranty  by  Indirection. 
the  word  presumptively  imports  that  the  promise  was  collateral,  199  note 

but  presumption  may  be  rebutted, id. 

not  within  the  statute  unless  the  person  for  whom  the  guaranty  was 

given  is  also  liable  for  the  same  debt, 280,  366 

And  see  Conbitional  Promise,  V. 
guaranty  that  property  of  debtor  in  hands  of  promisor  will  sell  for 

enough  to  pay  the  debt,  when  coupled  with  promise  to  pay  it, .  568,  570 
general  rule  as  to  the  contract  of  guaranty  implied  upon  assignment 

of  chose  in  action, 653  note 

Ouaranties  which  are  Twt  within  the  statute  cf  frauds,  although  principal 
debtor  continued  liable,  (Collateral  Undertakings,  Ninth  Rule,). .  648-679 
these  two  kinds  are  the  only  descriptions  of  guaranty  not  within 

the  statute, 648,  649 

in  each  of  them  the  title  passed  to  the  guarantee  through  the 

guarantor, 649 

the  rule  stated, , 649 

L  Where  the  subject  of  the  guaranty  was  a  chose  in  action,  trans- 
ferred by  the  guarantor  to  the  guarantee,  upon  a  consideration 
moving  between  them, 650-664 

1.  Grounds  upon  which  this  description  of  guaranty  has  been 

sustained, 650-652 

evidently  a  c^se  not  within  intent  of  statute,  653 

may  be  regarded  as  mere  extension  of  warranty  implied  by  law,  654 
English  case  puts  it  upon  the  ground  that  guarantee  could  not 
enforce  the  contract  against  original  debtor, 655 

2.  New  York  cases  presenting  great  variety  of  circumstances  under 

which  question  arises, 656-663 


INDEX.  777 

GUARANTY  —  ( Continued)  Section, 

remarkable  legal  controversy  in  New  York,  growing  out  of  the 
idea  that  under  such  circumstances  guarantor  could  be  treated 

as  maker  of  the  note,  etc., 656,  note 

final  abaiulouuient  of  that  theory  and  establishment  of  the  nilc 

now  recognized,.. 6G0-CG3 

full  statement  of  that  rule 063 

3.  Other  American  cases  upon  the  question, 664,  note 

effect  of  the  statute  of  usury  upon  the  question id. 

II.  Where  the  debt  guarantied  was  thereafter  to  be  contracted 
through  the  agency  of  the  guarantor,  as  the  factor  of  the 
guarantee.    See  Del  Credere  Commission. 

GUARANTY  BY  INDIRECTION : 

meaning  and  effect  of  the  expression  "  to  answer  for,"  as  used  in  the 
second  clause  of  the  fourth  section, 113 

I.  Semble  that  a  promise  to  do  some  act  for  the  creditor's  security  is 

not  within  the  statute,  if  it  does  not  directly  require  the 

promisor  to  discharge  the  debt, 113-119 

as  to  execute  a  bail  bond  for   a  debtor    arrested  on   mesne 

process, 113 

or  to  procure  a  fourth  person  to  execute  a  guaranty  for  a  third 

person, 114,  115 

or  to  retain  the  amount  of  the  debt  in  the  hands  of  the  promisor 

out  of  moneys  payable  to  the  debtor, 116 

And  sec  Fund. 

II.  But  in  Illinois  it  has  been  held,  that  a  guaranty  by  indirection  is 

within  the  statute, 117 

III.  An  agreement  to  purchase  a  debt  is  not  a  guaranty, 118, 119 

IV.  For  analogous  cases,  see  Conditional  Promise. 

H. 

"HIRE:" 

effect  of  the  use  of  this  word,  upon  the  question  whether  a  promise 
was  original  or  collateral, 202 

I. 

IMPEDniENT : 

a  promise,  the  effect  of  which  is  merely  to  remove  some  impediment 
to  the  enforroment  of  a  liability  by  the  promisee,  is  not  within  the 
statute.    See  FoR>tEU  Liability. 

IMPLIED  PROMISE: 

of  the  distinction  between  an  assent  of  the  third  person  and  his  re- 
quest, when  the  question  is  whether  he  beraine  liable,  163,  439,  460,  461 

whether  promise  to  pay  a  debt,  made  to  a  debtor,  upon  a  considera- 
tion moving  from  him,  raises  an  implied  promise  in  favor  of  the 

creditor, 389 

98 


778  INDEX. 

IMPLIED  FBOM.IQ'E— {Continued.)  Section, 

of  the  implied  promise  of  a  principal  to  protect  his  surety,  bail,  etc., 

from  loss, 438,  439,  477 

in  England  it  is  held  that  no  such  promise  arises  in  favor  of  bail  in  a 

criminal  proceeding, 447,  448  and  Tiote 

I.  Executors'  and  administrators'  implied  contracts  are  not  within 

the  first  clause  of  the  fourth  section, 38-35 

II.  Implied  contracts  to  answer  for  the  debt,  etc.,  of  another,  are  not 

within  the  second  clause, , 95-101 

the  word  "  special "  is  used  in  this  clause  in  contradistinction  to 
"  implied," 95 

statute  does  not  apply  when  defendant's  undertaking  was  im- 
plied in  consequence  of  a  payment  by  plaintiff  on  his  account,    96 

so  where  a  contract  was  implied  from  the  terms  of  a  deed  from 
plaintiff  to  defendant, 97,  98 

so  where  the  action  was  founded  upon  an  implied  warranty  of 
genuineness  of  a  signature, 99 

or  an  implied  guaranty  of  payment  or  collection  upon  the  trans- 
fer of  a  chose  in  action, 100 

or  the  duty  of  a  principal  to  indemnify  his  agent, 101 

the  implied  promise  of  a  trustee  for  benefit  of  creditors  is  not 
within  the  statute, 101  Twte,  531,  533 

Incidental  liability  : 

for  third  person,  not  within  the  statute, 615 

INDEMNITY  : 

contracts  of  indemnity  not  within  statute,  when  no  one  except  prom- 
isor boimd  to  indemnify  promisee.     See  "  Another  Person,"  III. 

the  rule  is  unsettled,  when  the  indemnity  was  against  a  liability  to, 
be  incurred  as  sm'ety  for  a  third  person.  See  "Another  Per- 
son," IV. 

but  where  promise  of  indemnity  was  in  substance  promise  to  pay 
third  person's  debt  to  promisee,  the  statute  applies, 212,  213 

INDIRECT  GUARANTY: 

See  Guaranty  by  Indirection. 

INDORSEMENT  AND  INDORSER: 

a  promise  to  indorse  the  note  or  bill  of  exchange  of  a  third  person, 

to  be  given  to  the  promisee,  is  within  the  statute, 209-211 

principle  the  same  although  promise  was  to  indemnify  promisee,  if  he 

would  afterwards  indorse  and  get  discounted, 212,  213 

but  the  statute  does  not  apply  when  promisor  was  real  debtor,  or 

when  indorsement  was  for  his  accommodation 214,  215,  445,  467 

the  statute  does  not  apply  to  an  indorser's  renewal  of  liability,  when 

he  has  been  discharged  for  want  of  protest,  etc., 503-508 

whether,  in  order  to  avoid  the  effect  of  the  statute,  it  is  necessary 

•    that  he  should  have  had  full  knowledge  of  the  facts, 508 

See  also  Bill  op  Exchange. 


INDEX.  779 

INFANT  AND  INFANCY:  Section, 

promise  to  pay  debt  contracted  during  infancj'',  required,  by  Lord 

Tentcrdcn's  act,  to  be  in  writing, 105  and  note 

so  by  special  statute  in  some  of  the  United  States, id. 

Whether  an  auxiliary  promise  to  rc)<jx>iid  for  a  debt  contracted  by  an 
infant,  not  for  neci'ssaries,  is  icillioat  the  statute  by  reason  of  tJie  dis- 
ability of  tlic  "priiruiry  debtor. 

I.  General  doctrine  of  the  elfect  of  a  disability  of  the  primary  debtor 

upon  the  application  of  the  statute, 248-251,  and  248  rwt.e. 

II.  The  question  with  respect  to  the  disability  of  an  infant, 257-267 

general  statement  of  the  rights  and  disabilities  of  an  infant, 257 

effect  of  these  principles  upon  the  application  of  thg  statute, . .   258 

•  examination  of  the  adjudications, 259-2(56 

infant  not  liable  for  repairs  of  his  dwelling, 261  note 

father's  and  guardian's  liability  for  clothes  supplied  infant,  263  and  note 
cases  where  an  action  was  sustained  in  favor  of  a  surety  against 
an  infant  principal,  and  in  favor  of  a  person  who  had  paid  his 
debts  at  his  request,  the  debts  being  for  necessaries, 266  note 

INSUEANCE : 

verbal  contract  for,  valid, 5  and  note 

INVALIDITY  OF  TOE  PROMISE : 

who  entitled  to  insist  upon  it,  and  who  may  be  compelled  to  do 
so, 160, 161  and  mte,  173 

J. 

JOINT  PROmSES : 

I.  Whether  an  auxiliary  promise  is  out  of  the  statute  when  the 
promisor  undertook  jointly  with  the  person  benefited, 227-247 

1.  Cases  where  the  joint  promise  is  clearly  not    within   the 

statute, 227-229 

2.  The  case  whereupon  the  doubt  arises, 230 

3.  Authorities  supposed  to  maintain  the  proposition  that  the 

statute  is  not  applicable, 231-234 

4.  Michigan  case  to  that  effect 235,  236 

5.  Authorities  bearing  with  greater  or  less  directness,  upon  the 

other  side  of  the  question 237-241 

6.  Comments  upon  the  cases,  and  examination  of  the  question 

upon  principle, 242-247 

II.  Assumption  by  two  persons  jointly,  of  the  antecedent  several 

debt  of  one,  is  out  of  the  statute, ^  354,  356 

but  see  a  case  apparently  contra, 342-344 

in.  So,  where  one  of  two  joint  debtors  assumed  the  debt  severally,.  357 
rV.  Whether  a  joint  guaranty  of  a  note,  etc.,  made  upon  its  transfer, 
by  the  holder  and  another  as  his  surety,  is  within  the  statute, 

656  note,  659,  663 


780  INDEX. 

JOINT  SURETIES:  Section, 

a  promise  by  one  joint  surety  to  indemnify  the  other  is  not  within 
the  statute, 463,  454 

JURY: 

whether  promisee  gave  any  credit  to  third  person  is  generally  a  ques- 
tion for  the  jury 150,  180 

they    are    to    take    into   consideration   all    the  attending   circum- 
stances,  id.,  153-179 

how  far  the  general  question,  whether  the  promise  was  original  or 

collateral,  belongs  to  the  jury, 180-188 

See  Liability  of  Third  Person,  III. 

questions  for  the  jury  when  the  promisee  insists  that  he  had  aban- 
doned the  original  .contract,  etc., 298 

K. 

KENT,  CHIEF  JUSTICE : 

his  classification  in  Leonard  v.  Vredenburgh 63 

whether  the  thu'd  class  of  cases  was  correctly  defined  by  him, 593 

594,  613  and  note. 
See  Leading  Object  of  Promisor  ;  Lien,  II. 


L. 
LAW  MERCHANT : 

statute  not  applicable  to  cases  governed  by, 84r-86 

LEADING  OBJECT  OF  THE  PROMISOR: 

Whether  the  doctrine  is  law,  that  a  promise  to  pay  a  third  persorCs  debt 
is  Twt  within  the  statute,  whenever  the  promisors  leading  object  was 
to  subserve  some  interest  of  his  awn. 

this  question  generally  referred  to,  preliminary  observations 
thereon, 520,  521,  571 

I.  Cases  where  property  was  surrendered  to  the  promisor  in  consid- 

eration of  his  promise  to  pay  a  charge  thereon,  which  have 
been  supposed  to  be  dependent  upon  and  illustrations  of  this 

doctrine, 575-604 

See  Lien,  I,  II. 
comments  of  English  and  American  writers,  upon  those 
cases, note,  606 

II.  Various  theories  derived  from  the  above  mentioned  cases,  and 
the  subsequent  American  adjudications  of  the  same  general  cnar- 
acter, 606-614 

statement  of  four  propositions  now  advocated  upon  their 

authority, 607 

these  propositions  briefly  examined, 608-614 

III.  This  question  discussed  and  the  doctrine  condemned, 615-647 


INDEX.  781 

LEADING  OBJECT  OF  THE  PROMISOR  — (<7<mftntt«?.)  Section. 

1.  The  question  stated,  etc., 615-G19 

distinction  between  this  proposition  and  that  depending  upon 
the  leading  object  of  the  transaction, 01.>-<>16 

2.  Cases  which  repudiate  this  doctrine, 620,  G21 

Fulhvm  V.  Adams, 620 

Maule  v.  Bucknell, 621 

3.  Cases  which  depend  upon  this  doctrine, 622-628 

Emerson  v.  Slater, 623-626 

Kutzmeyer  v.  Ennis, 627 

4.  Cases  where  this  doctrine  was  unnecessarily  asserted,. . . .  629-639 

5.  Cases  which  negative  this  doctrine  by  implication, 640-646 

6.  Conclusion  of  the  discussion, 646,  647 

LEADING  OBJECT  OF  THE  TRANSACTION: 

when  not  to  render  party  liable  for  another's  debt,  etc.,  case  is  not 
■within  the  statute, 615 

LEGACY: 

action  at  law  for  general  legacy  will  not  lie, 42 

otherwise  for  specific  legacy,  or  when  general  legacy  severed, id. 

but  under  special  statutes  it  will  lie  in  some  of  the  United  States,. . .  43 

LIABILITY  OF  THIRD  PERSON: 

in  order  to  set  the  statute  in  motion  there  must  be  two  concurrent 

liabilities, 126 

the  liability  of  the  third  person  must  be  one  which  could  be  enforced 

by  legal  proceedings, 137 

it  must  be  for  the  same  debt  or  duty  which  the  promisor  imder- 

took  to  discharge,  129-137 

illustrations  of  the  general  proposition.     See   Concubrent   Liabili- 

TtES,  III. 
Cases  not  vriihin  tJie  statute,  because  tJw  third  person,  although  he 
received  the  consideration,  incurred  no  liability  concurrent  with  the 

jyrmiisor's.    (Collateral  Undertakings,  Third  Rule.) 139-267 

the  rule  stated, 139 

the  rule  examined  upon  principle, 140,  141 

L  Early  English  cases  from  which  the  rule  has  been  derived, 142 

Lord  Mansfield's  theory,  in  IVIawbrey  v.  Cunningham,  that  a 
promise  before  the  consideration  was  furnished  is    not 

within  the  statute, 144,  145 

abandoned  by  him, 145 

formally  overruled,  and  the  modem  doctrine  settled  in  Mat- 
son  V.  Wharam, 146 

n.  Where  the  third  person  made  no  express  promise  to  respond,  the 

test  is  whether  any  credit  was  given  him, 147-179 

1.  Elementarj-  analysis  of  this  question, 147-152 

In  most  cases  the  third  person's  liability  dc]iends  upon 
acceptance  by  promisee  of  his  express  or  implied  under- 
taking,    147,  148 


782  INDEX. 

LIABILITY  OF  THIRD  FBRSO'i^  —  (Contmrnd.)  .  Section. 

the  test,  then  is  whether  the  promisee  parted  with  the  con- 
sideration upon  the  sole  credit  of  the  promisor,  or  upon 
the  credit  of  both, 148,  149 

third  person  must  have  been  a  conduit  through  which 
promisee  received  the  consideration, 149 

generally  the  question  is  for  the  jury;  they  are  to  consider 
all  the  attending  circumstances, 150 

the  application  of  the  statute  depends  upon  what  took  place 
when  the  contract  was  consummated,  and  subsequent 
events  will  not  affect  it, 153 

2.  English  cases  upon  the  question  of  credit  to  the  third  person, 

and  showing  the  application  of  the  principle, 153-163 

the  proposition  illustrated  that  all  the  attending  circum- 
stances are  to  be  weighed, 155,  156,  158 

person  falsely  representing  himself  as  authorized  by  another 

to  pledge  his  credit, 157 

who  may  insist  upon  the  invalidity  of  the  promise, 160,  161 

distinction  between  third  person's  assent  and  promise, 163 

3.  Ainerican  cases  to  the  same  effect, 164-179 

Judge  Story's  doubts  whether  the  principle  was  sound, 165 

but  now  firmly  settled  by  authority;   illustrations  of  its 

application, 166-179 

when  the  defendant  cannot  be  compelled  to  insist  upon  the 

defence  of  the  statute, 173 

III.  The  province  of  the  court  and  jury,  respectively,  upon  the  ques- 

tion whether  the  promise  was  original  or  collateral, 180-188 

questions  which  undoubtedly  belong  to  the  jury, 180 

it  is  sometimes  said  that  the  jury  are  entitled  to  pass  upon 

the  import  of  the  words  used, 181,  182 

but  it  seems  that  unless  words  of  equivocal  meaning  are 

used,  their  effect  belongs  to  the  court, 183 

cases  thereupon, 184-188  and  note. 

when  words  used  are  of  equivocal  meaning,  the  question  is 

in  what  sense  the  promisee  received  them, 188 

IV.  Whether  the  promisee's  books,  etc.,  are  evidence  in  his  favor,  189-193 

it  is  conceded  that  they  are  evidence  against  him, 189 

cases  where  it  has  been  intimated  that  they  were  not  evidence  in 

his  favor, 190,  191 

the  authorities  in  support  of  this  proposition  criticized,  192  and  riot^. 
admissibility  of  the  plaintiff's  books  under  local  statutes  or  rules 

of  evidence, id. 

reasons  for  the  opinion  that  the  books,  etc.,  are,  in  general,  admis- 
sible,   193 

V.  Where  the  promise  in  terms  contemplated  a  resort  by  the  prom- 

isee to  the  third  person.     See  Conditioxal,  Promise. 

VI.  Whether  an  exception  to  the  rule  arises  when  the  promisor  and 

the  third  person  assumed  a  joint  liability.  See  Joint  Pkomises,  L 


INDEX.  783 

LIABILITY  OP  THIRD  PERSON  — (Con^inw«</.)  Sectiou. 

VII.  Whether  the  piomise  is  within  the  statute  when  it  was  auxiliary 
to  that  of  a  married  woman  or  an  infant.  See  Maiiried 
WoiLV-N ;  Infant  and  Infancy. 

Cases  not  within  t/te  statute  because  the  third  persoii's  lialiUity  teas  dis- 
cluirged  before  tluit  of  tlie  promisor  took  effect. 

See  Discharge  of  Third  Person. 

LIEN: 

Cases  where  a  promise  to  pay  anotJier's  precedent  debt  isr  not  within  * 
Vie  statute,  because  it  was  founded  upon  tlie  surrender  of  a  lien  to  the 

promisor.    (Collateral  Undertakings,  eighth  rule.) 571-604 

preliminary  statement  of  questions  connected  with  this  prin- 
ciple  520,  521,  528 

the  question  also  to  be  discussed,  whether  this  is  any  thing 

but  a  corollary  from  another  proposition, 571 

See  Leading  Object  op  Promisor. 

the  rule  stated, 573 

doubtful  whether  the  surrender  of  the  lien  simultaneously 

with  the  promise  is  essential, 573,  602,  604 

lien  must  have  attached  to  property  of  promisor, 574 

And  see  II,  post. 
but  his  interest  may  have  been  acquired  simultaneously  with 
making  the  promise, id. 

I.  The  English  cases  whence  this  principle,  the  principle  depending 

upon  a  fund,  and  several  questionable  theories  have  been  de- 
rived,   575-591 

Tomlinson  v.  Gill 57(j 

Williams  v.  Leper, 577^  578 

Houlditch  V.  Milne, 579 

Castling  v.  Aubert, 580,  581 

Barren  v.  Trussell,  erroneously  classed  with  this  series 582 

Edwards  t.  Kelly, 583 

Bampton  v.  Paulin, 584 

Thomas  v.  Williams 585 

Walker  ■».  Taylor, 586 

Clancy  v.  Piggott, 587 

Tomlinson  v.  Gell, . .  588 

Gull  V.  Lindsay, 589 

Fitzgerald  v.  Dressier, 590,  591 

1.  These' cases  are  constnied  in  England  to  have  depended  upon 

the  fact  that  the  promisor  or  his  property  was  already 
liable  to  pay  the  debt, 591,  600  and  note,  602 

2.  The  comments  of  English  and  American  elementary  writers 

thereon, note,  60« 

II.  American  cases  depending  upon  the  surrender  of  a  lien  by  the 

promisee, 592-004 

1.  Chief  Justice  Kent's  proposition  that  a  new  and  an  original 
consideration,  etc.,  will  take  the  case  out  of  the  statute 592 


784  INDEX. 

LIEN  —  {Continued)  Section. 

2.  From  this  was  derived  the  doctrme  that  the  surrender  of  a 

lien  sufficed,  whether  made  to  the  debtor  or  the  promisor,  593 

594 

3.  The  modern  principle  is  that  the  lien  must  have  been  sur- 

rendered to  the  promisor, 594,  595 

4.  Nelson  v.  Boynton,  wherein  the  modern  doctrine  was  first 

declared, 596 

5.  Malloiy  i\  Gillett,  the  leading  case, 597 

6.  Other  cases  following  on  the  same  side, 597-603 

7.  Where  the  lien  was  only  inchoate, 600 

8.  Where  its  surrender  was  only  constructive, 601 

9.  Whether  its  cotemporaneous  surrender  is  essential, 602,  604 

10.  The  principle  that  the  statute  applies  unless  the  lien  was  sur- 
rendered to  the  promisor,  is  believed  to  be  permanently 
established, 603 

III.  Examination  of  the  question  whether  this  is  an  independent 
principle,  or  merely  a  corollary  from  one  of  more  extended 
application.    See  Leading  Object  of  Pkomisor. 

LBHTATIONS : 

whether  the  jury  are  entitled  to  determine  the  meaning  of  a  writing 
alleged  to  contain  an  acknowledgment  or  new  promise,  .  180,  and  note 

renewal  of  liability  for  debt  of  another,  barred  by  statute  of  limita- 
tions, not  within  statute  of  frauds, 497 

the  same  rule  applies  where  the  new  promise  was  made  before  the 
statute  of  limitations  had  run, 497,  note 

but  see  Lord  Tenterden's  act,  and  corresponding  American  statutes, 

105  and  note 

M. 

"MAKE  GOOD": 

effect  of  these  words  on  the  question  whether  the  promise  was  origi- 
nal or  collateral, 200 

MANSFIELD,  LORD : 

his  theory  that  there  could  be  no  nudum  pactum  if  the  contract  was 

in  writing, 9 

his  theory  that  a  promise  was  not  within  the  statute,  if  made  before 

the  consideration  was  furnished, 144, 145 

MARRIAGE  AGREEMENTS : 

agreements  upon  consideration  of  marriage  must  be  in  writing, 680 

policy  of  this  enactment ;  whether  its  effect  has  been  beneficial,  681,  682 

not  applicable  to  false  representations, 683-686 

And  see  post,  V. 
distinction  between  agreements  upon  consideration  of  marriage,  and 
those  made  in  consideration  of  a  promise  of  marriage,  or  in  con- 
templation of  marriage, 687-690 


INDEX.  785 

MARRIAGE  AGREEMENTS  — (Ctf?i<irtM«f.)  Section. 

whether  a  promise  made  upon  consideration  of  marriage  can  be  with- 
drawn before  the  actual  marriage, GOl ,  692  and  note 

consent  of  a  guardian,  etc.,  to  a  marriage,  cannot  be  withdrawn  with- 
out cause, G93 

Analysis  of  the  subject  op  promises  upon  consideu.vtion  of 
marriage. 
L  Nature,  etc.,  of  the  marriage  consideration ;  who  is  within  its 

scope, 694-G9S 

1,  Marriage  is  a  vahiable  consideration,  and  the  highest  Ivnown  to 

tlie  law, 695  and  note 

consequently  a  grantee  upon  that  consideration  takes  as  a  purchaser     • 

for  value,  cutting  off  intermediate  equities ;  instances,. .  695,  696 
antenuptial  settlement  good  against  creditors,  unless  grantee,  etc., 

was  a  party  to  an  actual  fraudulent  intent, 696  and  note 

2.  Husband,  wife  and  issue  are  within  its  scope;  how  far  collateral 

relatives  are, 697  and  mta 

II.  What  contracts  are  within  this  provision,  and  vice  versa. 

1.  Statute  not  applicable  to  actions  for  breach  of  promise  of  mar- 

riage,  : 699-701 

2.  It  is  applicable  to  all  agreements  creating  rights,  etc.,  not  flow- 

ing from  matrimonial  relation, 702,  703  and  note 

3.  But  not  where  marriage  was  merely  an  inducement  to  the  con- 

tract, the  completion  of  which  did  not  afiFect  its  obligatory 
character, '^O'l)  ''^OS 

4.  Or  where  execution  of  the  contract  depended  upon  the  mar- 

riage, if  the  consideration  was  entirely  distinct, 706 

6.  The  rule  where  there  was  a  distinct  consideration,  in  addition  to 

that  of  mari'iage, 708-718 

a  distinct  and  independent  consideration  will  render  the  statute 
mapplicable, 708-710 

cases  where  there  was  a  distinct,  but  not  an  independent  consid- 
eration,    712-717 

Crane  v.  Gough,  a  Maryland  case, 712,  713 

Riley  v.  Riley,  a  Connecticut  case,  regarded  as  erroneously  de- 
cided   714-716 

Finch  V.  Finch,  an  Ohio  case,  contra, 717 

,  what  is  tlic  correct  rule,  in  this  class  of  cases, 718 

III.  Whether  marriage  is  such  a  performance  of  a  verbal  agree- 

ment, made  in  consideration   thereof,  as  to  entitle  the  party 
in  equity  to  specific  performance, 720-728 

1.  The  general  doctrine  is  that  if  one  party  has  relied  upon  the 

word,  etc.,  of  the  other,  equity  will  not  relieve, 720-725 

cases  cbntra,  not  regarded  as  law, "^20,  note 

the  rule  is  the  same,  although  the  agreement  was  that  a  writing 

should  be  executed, ''^24 

2.  But  if  there  was  any  actual  fraud  or  trick,  the  rule  is  other- 

wise  .* 722,  note,  726-728 

99 


786  INDEX. 

MARRIAGE  AGREEMENTS  — (Cor. iim^erZ.)  Section. 

IV.  Whether  a  postnuptial  settlement  can  be  sustained,  on  the 

ground  that  it  was  made  in  execution  of  a  verbal  antenuptial 

promise, 729-741 

some  early  authorities  that  verbal  antenuptial  promise  will  sus- 
tain postnuptial  settlement  against  creditors, 729,  note 

but  the  rule  is  now  well  settled  otherwise, 729-734 

it  is  not  altered  by  the  recital  of  a  verbal  antenuptial  agreement,    id. 
case  where  a  postnuptial  settlement  was  unsuccessfully  inter- 
posed to  defeat  an  equity  of  redemption, 730 

whether  duty  to  provide  for  wife  and  children  will  ever  prevent 

a  settlement  from  being  voluntary, 735  and  rvoie 

whether  verbal  antenuptial  contract  will  sustain  written  contract 

or  conveyance  as  valuable,  as  between  parties,  &c., 735,  736 

voluntary  postnuptial  settlement  is  valid  between  parties  and  vol- 
unteers,    737 

cases  where  verbal  agreements  between  husband  and  wife  were 

said  to  have  been  executed  during  coverture, 737,  738 

diflSculty  of  determining  such  questions, 739 

but  alleged  acts  of  performance  must  indicate  a  binding  agreement ; 
a  will  is  not  sufficient, 740,  741 

V.  Whether  equity  will  enforce  an  antenuptial  representation  of  an 
intention,  where  the  statute  would  prevent  the  enforcement  of  a 
similar  promise, 742-761 

1.  Statement  of  the  question  to  be  examined, 742,  743 

2.  Various  English  cases,  wherein  the  question  arose,  stated  and 

criticised, 744-760 

De  Beil  v.  Thomson ;  Hammersley  v.  De  Biel, 744-747,  and  riote. 

Lassence  v.  Tiemey 748,  749 

Surcome  v.  Pinniger, 750 

Maunsell  v.  White, 751 

Jorden  v.  Money ;  Money  v.  Jorden, 752-754 

criticisms    upon    that  case ;   subsequent  decisions  of   subordi- 
nate equity  courts, 755  and  7U)te 

Caton  v.  Caton, 756-758 

Williams  v.  Williams,  the  latest  case, 759, 760 

3.  The  rule  stated,  as  derived  from  all  the  cases,  to  the  eflfect  that 

there  is  no  difference  between  such  a  representation  and  a 
contract, 761 

MARRIAGE  SETTLEMENTS : 

various  questions  relative  to  the  validity  of,  under,  and  independeutly 
of  the  statute.    See  Mabriage  Agreements. 

MARRIED  WOMAN: 

I.  Promise  to  pay  married  woman's  attorney  in  action  for  divorce, . .  137 

II.  Husband's  promise  during  coverture  to  pay  his  wife's  debt  con- 

tracted before  coverture,  is  within  the  statute,  semble, 496,  note 


INDEX.  787 

MARRIED  WO'M.A'N  — {Continued.)  SecUon. 

Iir.  Whether  a  married  woman's  disability  to  contract  takes  out  of  the 

statute  an  auxiliary  promise  to  respond, 248-256 

1.  The  general  doctrine  of  the  effect  of  a  disability  of  the  primary 

contractor, 248-251,  and  248,  7wte 

2.  The  question  examined  with  reference  to  a  married  woman's 

disability, 252-256 

a  married  woman's  contract  absolutely  void  at  common  law, 252 

nevertheless  her  credit  has  a  legal  existence, 252,  and  note 

guaranty  of  married  woman's  contract  binding  at  common  law,  253 

but  the  reason  for  this  ruling  is  obscure, 256 

rV.  Contracts  between  husband  and  wife,  and  antenuptial  agree- 
ments, how  affected  by  the  statute,  and  the  remedies  thereon,. 
See  Mabkiagk  Agreements. 

MERCANTILE  LAW : 

cases  governed  by,  not  within  the  statute, , 84-88 

"MISCARRIAGES": 

meaning,  etc.,  of  the  word.  See  "  Debt,  Default,  or  MiscARRiAGEa" 

N. 

NEW  PROMISE : 

waiving  the  defence  of  the  statute  of  limitations,  not  within  the  stat- 
ute of  frauds, 497,  and  Twte 

reviving  former  liability,  when  not  within  statute.    See  Former  Lia- 

BrLITY. 

NOVATION : 

the  process  by  which  one  person  becomes  substituted  as  a  debtor  in 
place  of  a  third  who  is  discharged, 331 

term,  and  rules,  etc.,  borrowed  from  the  civil  law, id. 

definition  and  modes  of  novation  as  given  by  Pothier, 322 

expromissio  and  adpromissio, 295,  322,  338 

the  civil  law  pennits  a  novation  to  be  effected  without  the  consent  of 
the  original  debtor, 296 

but  the  common  law  requires  his  concurrence, id. 

same  practical  result  effected  by  party  disqualifying  himself  from 
enforcing  the  contract.     See  Discharce  of  Tiiiud  Persox,  IV. 

where  effected  by  agreement  to  discharge  a  debtor  in  consideration 
of  his  debtor  agreeing  to  pay  debt  to  the  original  creditor, 324-337 

this  is  styled  a  delegation  in  the  civil  law, 325 

common  law  rule  said  to  be  that  both  the  intcmiediatc  debts  must  be 
discharged, 326 

novations  thus  effected.     See  Discitargk  of  Tiiiro  Person,  V,  2,  3. 

whether  this  rule  is  still  in  force.     See  FoiniEii  Liabii-ity,  V. 

where  the  third  peison's  antecedent  liability  to  the  promisee  was  dis- 
charged, in  consideration  of  its  assumption  by  the  promisor,. . .  338-357 
See  Discharge  of  Third  Person,  V,  4-6. 


788  INDEX. 

NUDUM  PACTUM  :  Section, 

exploded  theory  that  there  can  be  no  nudum  pactum  in  writrng,. ; .  9-11 

a  ' 

OKAL  AGREEMENTS : 

See  Statute  op  Frauds  ;  Executors  and  Administrators  ;  Coir 

LATERAL  UNDERTAKINGS  ;  MARRIAGE  AGREEMENTS. 

ORIGINAL  DEBTOR : 

his  discharge  will  take  out  of  the  statute  a  promise  to  answer  for  the 
debt.    See  Discharge  of  Third  Person. 


P. 

PAROL  AGREEMENTS : 

See  Statute  of  Frauds  ;  Executors  and  Administrators  ;  Col- 
lateral Undertakings  ;  Marriage  Agreements. 

PARTNERSHIP : 

waiver  of  excess  of  power  by  a  partner  in  making  the  firm  liable  for 

another's  debt,  semble,  not  within  statute,  497-500 

so  of  a  revival  of  partnership  debt  after  a  technical  discharge,. .  501,  503 

PAYMENT  OF  INTEREST: 

by  an  executor,  when  an  admission  of  assets, 34,  35 

is  a  waiver  of  a  discharge  of  a  guarantor  by  laches  of  the  creditor, . .  505 

PRINCIPAL  DEBTOR: 

See  Third  Person. 

PRIVY: 

in  England  stranger  to  consideration  cannot  sue  upon  a  contract,  386,  note 
the  rule  in  the  United  States.     See  Another  Person,  II ;  Fund,  VII. 

POSTNUPTIAL  SETTLEMENTS : 

SeeMAKBiAGE  Agreements. 

PROMISE,  IMPLIED : 

See  Implied  Promise. 

PROMISE  TO  IVIARRY: 

not  withm  statute, 699-701 

PROMISE,  VERBAL : 
See  Statute  of  Frauds;  Executors  and  Administrators;  Collateral 
Undertakings  ;  Marriage  Agreements. 


INDEX.  789 

PROMISEE:  Section, 

statute  not  applicable  if  promisee  was  not  the  creditor.    See  "Anotuek 
Pkkson." 

PROMISOR'S  OWN  DEBT : 

that  a  promise  is  not  witliin  tlic  statute,  when  its  substance  was  that 
the  promisor  would  pay  his  own  debt,  whatever  its  form  or  who- 
ever is  also  liable, , 214,  480,  484,  015,617,  650 

See  FoRMEU   LijVbility  ;    Fund  ;   Lien  ;   Leading   Object,  etc. ;    Del 

Credere  Commission;  Guakanty,  I. 

PROMISSORY  NOTE: 

liabilities   regulated   by  the    mercantile   law    are    not  within    the 

statute, 86-88 

the  statute  does  not  apply  to  a  promise  by  one  party  to  a  note  to 

indemnify  another  party, 445,  446 

waiver  of  a  technical  discharge  by  an  indorser,  whether  within  the 

statute.  See  Former  Liability,  IV. 
promise   to   indorse   third   person's   note   for  his  accommodation 

within  the  statute, 209-213 

80  of  a  promise  to  join  a  third  person  in  a  note  to  be  made  for  his 

accommodation, 211 

but  when  the  promisor  was  the  real  debtor  the  rule  is  different, .  .214,  215 

445,  467 
And  see  Conditional  Promise,  IV. 
PROPERTY : 

promise  to  pay  a  debt  which  is  already  a  lien  upon  promisor's  prop- 
erty, not  within  the  statute.  See  Lien  :  Leading  Object  of  Promisor. 
the  series  of  English  cases  upon  that  subject, 575-591 

PURCHASE: 

an  agreement  to  purchase  a  debt  is  not  within  the  statute, 118, 119 

effect  of  the  use  of  the  word  upon  the  question  whether  the  promise 

was  original  or  collateral, 203,  204 

of  the  doctrine  that  a  promise  is  without  the  statute  when  its  consid- 
eration was  the  purchase  of  an  interest,  . .  574,  580,  591,  606,  note  ;  620 

note;  &2,\,note;  Q41,7wte 
PURCHASER: 

person  coming  within  scope  of  marriage  consideration  is  a  purchaser 
for  value, 695,  696 

Q. 

/       QUESTIONS  OF  FACT : 

See  Jury. 

QUESTIONS  OF-  LAW : 

arising  on  the  use  of  particular  words,  as  descriptive  of  the  contract 
between  the  promisor  and  the  promisee,  or  between  the  promisee 
and  the  third  person.  See  Conditional  Promise,  I.— IV. ;  Llvbilitt 
OF  Third  Person,  III. 


790  I  »•  D  E  X  . 

R. 

RENEWAL  OF  LIABILITY:  Section, 

statute  not  applicable  to.  See  Former  Liabilitt,  IV. 

REPRESENTATION : 

I.  Of  executors,  etc.,  not  within  the  statute, 33,  35  a 

II.  A  liability  for  third  person's  debt,  founded  upon  a  deceitful  rep- 

resentation, not  within  the  statute, 102-111 

the  second  clause  relates  only  to  promises, 103 

1.  The  general  doctrine  established  in  England ;  opposition 

thereto  of  distinguished  jurists, 102-106 

but  the  law  altered  by  Lord  Tenterd^n's  act, 105 

similar  provisions  in  several  of  the  United  States ;  cases 

thereupon, 105  note 

2.  Whether,  if  such  a  representation  was  accompanied  by  a 

promise  to  respond  for  the  debt,  the  plaintiff  can  disregard 
the  promise  and  recover  upon  the  representation,  . .  107-111 

III.  Where  the  defendant  gave  credit  to  the  third  person  by  repre- 

senting that  he  was  liable  for  the  debt,  the  statute  does  not 
apply, 488 

rV.  Fraudulent  representations,  made  to  induce  a  marriage,  are  not 

within  the  statute, 683-686 

V.  Whether  equity  will  take  a  distinction  between  a  representation 
of  an  intention  and  a  promise,  so  as  to  enforce  the  former 
when  the  latter  would  be  within  the  statute.  See  Marriage 
Agreements,  V. 

REQUEST: 

person  liable  for  services,  etc.,  furnished  for  his  benefit  only  when 

they  were  also  fm-nished  at  his  request, 218,  219,  and  note 

distinction  between  third  person's  request  and  his  assent,  as  raising  an 

implied  assumpsit  on  his  part  to  the  promisee, 163,  439,  460,  461 

RULES: 

to  determine  the  validity  of  engagements  alleged  to  be  within  the 
second  clause  of  the  fourth  section, 73-83 

[For  references  to  the  places  where  these  rules  are  discussed,  etc.,  see 
the  Table  of  Contents ;  and  this  Index,  title  Collateral  Under- 
takings.] 

S. 
SALE: 

ancient  laws  regulating  sales, 8,  note 

eflFect  of  the  use  of  "  sale  "  or  "  sold,"  upon  the  question  whether  the 

promise  was  original  or  collateral, 205 

For  other  principles,  see  PtTRCHASE. 


INDEX.  70 1 

"SECURE"  AND  "SECURITY":  Section, 
effect  of  the  use  of  these  words  upon  tlie  question  whether  the  prom- 
ise was  original  or  collateral 199  and  note 

"SEE  PAID": 

such  a  promise  is  presumptively  collateral, 197-200 

but  presumption  may  be  overcome  by  proof, id. 

"  SPECIAL  PROMISE  " : 

moaning  of  the  word  "  spedal,"  as  used  in  the  statute, 95 

its  ellect  is  to  exclude  implied  promises, 95-101 

See  Implied  Promises. 
the  word  "  promise  "  excludes  a  liability  which  grows  out  of  a  repre- 
sentation.   See  Representation. 

SPECIFIC  PERFORMANCE: 

of  agreements  made  upon  consideration  of  marriage.  See  IVIab- 
RiAGE  Agreements,  III,  V. 

STATUTES : 

contracts  regulated  by  some  other  statute  are  exceptions  to  the  stat- 
ute of  frauds,   84,  89-91 

statute  of  limitations.    See  Limitations. 

local  statutes  invalidating  verbal  agreements  in  cases  not  within  the 
statute  of  frauds, 5 

Lord  Tenterden's  act  requires  representations  concerning  credit,  &c., 
to  be  in  writing, 105 

the  same  provision  in  several  American  statutes 105  and  note 

cases  construing  these  provisions, id. 

• 

STATUTE  OP  FRAUDS: 

general  survey  of, 1-11 

title  of,  does  not  indicate  its  subject  matter, 1 

prevalence  of  the  evils  against  which  it  was  aimed, 2 

its  object  and  effects  wen;  to  introduce  a  new  r\xle  of  evidence,. , .  2,  5,  8 

persons  to  whom  its  authorship  has  been  attributed, 3 

its  awkward  and  incongruous  phraseology  accounted  for, 3 

history  of  its  passage  tlirougli  both  Houses  of  Parliament, 3,  Tiote 

Lord  Nottingham  its  autlior, 4 

this  treatise  confined  to  the  4th  and  17th  sections, 5 

those  sections  generally  in  force  in  countries  governed  by  the  common 

law, id. 

most  of  the  perplexities  arising  in  their  application,  caused  by  depart- 
ures from  spirit  of  statute, 6 

varying  dispositions  of  the  courts  towards  the  statute,  and  effect 

thereof  upon  its  construction, 6,  7 

necessity  of  some  restriction  of  its  language  by  constniction, 7 

does  not  dispense  with  the  necessity  of  proving  a  consideration,  . . .  9-1] 


792  INDEX. 

STATUTE  OP  FRAUDS  —  (  Continued.)  Section. 

doctrine  of  Lord  Mansfield  and  Justice  Wilmot,  that  writing  dis- 
penses with  a  consideration, 9 

this  doctrine  exploded  by  the  House  of  Lords, 10 

but  questions  pertaining  to  the  consideration  and  the  application  oi 
the  statute  often  confounded, .' 11 

statute  superadds  a  writing  to  a  valuable  consideration,  as  necessary 
to  validity  of  contract, i id. 

provisions  relating  to  executors'  and  administrators'  promises.  See  Ex- 
ecutors AND  Administrators. 

provisions  relating  to  special  promises  to  answer  for  the  debt,  etc.,  of 
another  person.     See  Collateral  Undertakings. 

provisions  relating  to  agreements  in  consideration  of  marriage.  See 
Marriage  Agreements. 

STATUTE  OF  LIMITATIONS: 

See  Limitations. 

STORY,  JUSTICE : 

his  theory  that  credit  might  be  given  to  a  primary  and  to  an  auxil- 
iary promisor,  without  bringing  the  latter's  undertaking  within  the 
statute, 165  and  note 

his  theory  that  marriage  was  a  sufficient  performance  of  an  agree- 
ment in  consideration  of  marriage,  to  e.ntitle  the  party  to  a  decree 
for  specific  performance  of  the  agreement, 720,  note 

STRANGER: 

in  England  a  stranger  to  the  consideration  cannot  sue  upon  a  con- 
tract , .' 386  and  note 

the  rule  in  the  United  States.    See  Another  Person,  II ;  Fund,  VII. 

SUBSEQUENT  EVENTS: 

application  of  the  statute  not  affected  by  events  subsequent  to  the 

consummation  of  the  contract, 152 

unless  they  are  necessary  to  make  the  jiromisor's  obligation  perfect, 

as  the  delivery  of  goods  sold,  etc., ;  144,  145 

SURETY: 

promise  to  indemnify  for  becoming  surety  for  a  third  person.     See 

Another  Person,  IV. 
renewal  of  a  surety's  engagement  after  discharge  by  laches,  etc.,  not 

within  statute.     See  Former  Liability,  IV. 
surety  for  a  married  woman  or  an  infant.     See  Married  Woman; 

Infant,  etc. 
for  the  general  principles  relative  to  the  validity  of  a  verbal  contract 
of  suretyship,  see  Collateral  Undertakings. 


INDEX.  793 


T. 

THIRD  PERSON:  Section, 

in  treating  of  collateral  undertakings,  designates  the  person   for 
whose  debt,  etc.,  the  defendant  is  supposed  to  have  undertaken  to 

answer, 51 

consideration  moving  to,  will  not  take  a  collateral  promise  out  of  the 

statute, 58 

nor  will  the  fact  that  the  consideration  moved  to  third  person  bring 

an  original  promise  within  the  statute, 60 

must  be  specifically  designated,  semble, 358,  668 

quere,  whether  this  expression  can  apply  to  a  deceased  person,  ....  359 

includes  a  corporation, 360 

unless  there  was  a  third  person,  the  statute  does  not  apply.     See 
Concurrent  Liabilities;    "Another  Person." 
TIME: 

application  of  the  statute  depends  upon  what  happened  when  the 

contract  was  consummated, 152 

TORT: 

promises  to  respond  for  a  third  person's  tort  are  within  the  statute,  123-125 
TRANSFER: 

an  agreement  by  a  debtor  to  pay  his  debt  to  a  creditor  of  his  creditor, 
vahd  only  when  both  the  intermediate  debts  are  discharged  (Buller, 

J.,  in  Tatlock  v.  Harris), 326 

See  Discharge  of  Third  Person,  V,  2,  3. 
whether  the  rule  still  prevails  at  common  law  and  under  the  statute, 

See  Former  Liability,  V. 
effect  of  a  transfer  of  property  by  a  debtor  to  the  promisor,  upon  a 

promise  to  pay  the  debt.     See  Fond. 
guaranty  implied  upon  the  transfer  of  a  chose  in  action,  100  note,  653  note 

such  a  guaranty  not  within  the  statute, 100 

an  express  verbal  guaranty  valid,  when  given  upon  the  transfer  of  a 
chose  in  an  action  from  guarantor  to  guarantee.  See  Q-uaranty,  I. 
TRIPARTITE  AGREEMENTS: 

Judge  Story's  theory  respecting, 165,  and  Tioie 

between  creditor,  debtor  and  a  stranger,  whereby  stranger,  upon  a 
consideration  received  firom  debtor,  promises  creditor  to  pay  the 
debt.     See.  Fund,  VIL 
TRUSTEE  FOR  BENEFIT  OF  CREDITORS: 

his  duty  or  imphed  promise  not  within  the  statute, ...  101  note,  531,  532 

u. 

tJSURY: 

where  statute  of,  prevents  recovery  beyond  amount  received  for  a 

guaranty,  although  guaranty  is  good  by  statute  of  frauds, 664  note 

100 


794  INDEX. 

'     .  Y. 

VERBAL  AGREEMENTS :  Section. 

See  Statute  of  Frauds  ;  Executors  and  Administrators  ;  Collateral 

Undertakings;  Marriage  Agreements. 

w. 

WAIVER: 

of  a  teclinical  defence  against  a  liability  for  a  third  person's  debt, 

not  within  the  statute.    See  Former  Liability,  IV. 
so  of  excess  of  power  by  agent,  partner,  etc.,  in  making  the  promisor 

liable  for  another's  debt     See  Former  Liability,  IV. 

WARRANTY: 

its  origin  identical  with  guaranty, 49 

implied  upon  sales,  etc.,  not  within  statute.    See  Implied  Promise. 
other  warranties  not  within  the  statute.    See  Guaranty. 

WORDS: 

province  of  the  court  and  jury  respectively,  in  determining  the 

import,  etc.,' of  words  used  in  entering  into  an  undertaking.    See 

Liability  op  Third  Person,  III. 
where  they  are  of  equivocal  import  the  question  is  in  what  sense  did 

the  promisee  receive  them, 180 

cases  depending  upon  the  construction  of  the  words  of  the  statute. 

See   Collateral   Undertakings,  VI-XIII;   Executors  and 

Administrators,  IV;  I^Iarriage  Agreements,  IL 


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